Interviewing Procedures Matter

Senate Bill 353 recently passed the Michigan Senate and I am having a hard time understanding why it is (at any level) a good idea to insist that this Bill becomes law.

The objective of SB 353, introduced earlier this Summer by Senator John Proos (R 21st District), is to prevent local and city governments from making requirements on employers during the interview process.

Before I explain this further, let me note that even the supporters of SB 353 concede that there are no localities in Michigan that have passed or are planning to attempt to regulate the interview process.

So, why would the state legislature move to preemptively address a problem that, as of now, doesn’t exist in the state of Michigan?

I can see two possible reasons:

1. Several localities in other states have started to pass regulations requiring employers to refrain from asking questions about a potential employee’s prior wages during the interview process .

Why?

Because when women, for instance, are asked what their previous wage scale was, it allows employers to maintain gendered wage disparities (the wage-gap).

2. “Fair Chance” regulations could theoretically be passed by localities ensuring that employers don’t ask potential employees during interviews if they have been felons or incarcerated.

In either case, Michigan’s GOP majority is acting preemptively to codify and maintain already-existing systems of discrimination. This legislation is literally intended to protect employer’s and enforce already existing systems of structural discrimination.

The Wage Gap, Race and Gender Discrimination, and Employment Interviews

We suffer from a pretty substantial pay differential or “wage gap” between men and women in the United States or as the National Women’s Law Center put it:

“Women in the U.S. who work full time, year round are typically paid only 80 cents for every dollar paid to their male counterparts. The wage gap has stagnated, with very little change since 2007. This gap in earnings translates into $10,086 less per year in median earnings, leaving women and their families shortchanged.”

This national wage gap is even wider once race and intersectionality are taken into account as the Economic Policy Institute documented a few months ago:

“Black women are uniquely positioned to be subjected to both a racial pay gap and a gender pay gap. In fact, on average, black women workers are paid only 67 cents on the dollar relative to white non-Hispanic men, even after controlling for education, years of experience, and location.”

In other words for women, and especially for women of color, there are persistent structural barriers which prevent them from being paid fairly for an honest day of work.

Structural discrimination and racial discrimination can be much more insidious because the people codifying and enforcing the structures of discrimination often have no idea that they themselves are actively involved in gender or racial discrimination.

Too often people define discrimination not by what results occur but rather by what was or was not said to them or by them. U nconscious discrimination happens all the time and employers use salary history questions to tie a low-anchor to the salaries of potential employees.

The end result has been ongoing wage discrimination but also the start of a growing movement to redress this discrimination in cities and states across the country:

“Employers’ requests for an applicant’s salary history in the hiring process, and reliance on that information to determine compensation, forces women and, especially women of color, to carry lower earnings and pay discrimination with them from job to job. As a result, several federal courts and an increasing number of cities and states are prohibiting employers from basing compensation on an employee’s salary history.”

Preventing employers from asking questions about historical wages is a way of preventing the ghost of those previous salaries from haunting the women applying for new jobs.

Unfortunately, Senate Bill 353 seeks to prevent cities and localities from addressing wage discrimination.

Why should Michigan’s government be involved in enforcing for profit gender and racial discrimination?

Felony Histories, Structural Racism, and Employment Interviews

I know from experience that when you are released from prison, you face a reality much different than what you imagined and hoped for while still incarcerated.

When released, you likely face two or more years on parole or probation, have no money (but carry a large amount of criminal justice debt) and face a challenging housing situation.

In other words, you need a job in the worst possible way but face incredible employment discrimination in a job market where a massive number of employers refuse to even consider hiring a formerly incarcerated person.

And this is no small and isolated problem.

One in three people in this country have a criminal record and more than 640,000 people a year are released from prison. And let us not forget that this struggle is even more challenging for people of color as the history of mass incarceration in this country is bound up in race and racism.

So, incarceration has a disparate impact on people of color and as Devah Pager concluded in her study it also has a racially disparate impact on employment opportunity (especially on African-Americans):

“Blacks are less than half as likely to receive consideration by employers, relative to their white counterparts, and black nonoffenders fall behind even whites with prior felony convictions. The powerful effects of Race thus continue to direct employment decisions in ways that contribute to persisting racial inequality.”

And this disparity is very much alive in Michigan, especially in some of the most economically disadvantaged areas of the state where racial disparities loom even larger :

“According to the American Civil Liberties Union (ACLU), approximately 33% of the population has some sort of criminal record. However, these employment practices tend to have a disproportionate impact on minorities. It is believed that approximately 25% of African-Americans have a felony record. In Detroit, roughly 15% of the city's population (approximately 100,000 African-Americans) have a felony record, according to the ACLU. The potential inability of so many individuals to find jobs because of a felony record serves as a serious impediment to the city's recovery.”

It seems pretty obvious that something needs to be done, but what can we do?

One option that many jurisdictions have found success with, is passing “fair chance” legislation (which attempts to create sufficient face time between an employer and a potential employee prior to disclosure of an arrest history to create a meaningful and lasting connection).

Unfortunately, Senate Bill 353, because it prevents local governments from making interview requirements, prevents cities and localities from addressing employment discrimination through the passage of “Fair Chance” regulations.

Why should Michigan’s government be involved in enforcing for-profit employment discrimination (often bound up in significant racial disparity)?

Answering The Defenses of SB 353

The first defense by the proponents of this bill is that businesses, especially small businesses, are ill-equipped to deal with overlapping or conflicting federal, state, and local regulations.

This argument seems strange at this time because there is no current regulation, (this is preemptive legislation).

Also, there is already a better and available way to prevent regulatory inconsistency: Simply pass state-level Wage Gap legislation, Fair Chance legislation or both.

If the Senate is trying to send the signal that the wage-gap should not be redressed or that the state of Michigan does not have an interest in reducing employment discrimination against formerly incarcerated people they should at least have the good grace to admit it and defend it.

In addition, one of the best roles local governments can play is to address real community needs that are not being addressed at the state or federal levels and local experimentation can allow regulations to work in one area that might not be appropriate in all areas of the state.

Finally, if a state believes that all of its citizens deserve a fair and equal chance at employment and that racial disparities are wrong, that state should lead the way towards meaningful reform.

A few other arguments have been made in defense of SB 353 including:

1) There are many guidelines which already exist to protect discrimination against race and gender (Title VII, The EEOC, The Civil Rights Act etc.)

Yes, and while those guidelines may work at some level, the statistics above demonstrate with total clarity that these protections are not getting the job done at all.

2) There are many jobs that prohibit formerly incarcerated people from being licensed and those employers should be protected.

I am fairly certain, a state law could be passed ensuring that local ordinances do not prevent employers from asking if people have a felony of the kind that would disqualify them for the job that is being offered without creating blanket prohibitions.

In addition, Fair Chance legislation does not ban employers from knowing a formerly incarcerated person’s felony history, it only changes the time-frame during which the employer can ask for disclosure of that history.

3) Hiring formerly incarcerated people entails risks that expose employers to tort liability (for instance, if a formerly incarcerated person commits a crime while at work) so employers should be fully aware of a person’s crimes before they hire

Again, Fair Chance legislation does not prevent employers from asking about a potential employee’s felony history, it only changes the time-frame during which the employer can ask for disclosure of that history.

Also, taken to its logical extreme, this argument would make it impossible for any level of government to intervene in any way to influence hiring practices.

Finally, It seems odd that none of the defenses of SB 353 aim to justify the continuation of the wage-gap despite that being one of the major motivating factors behind pushing this legislation in the first place (out of sight out of mind?).

In Conclusion

Michigan should be leading the fight to address gender and racial discrimination in hiring but instead, our legislature is trying to protect employer’s from ever having to address structural race, gender, or status discrimination.

Michigan should be proud of any local government that is willing to shine a light on wage disparities or employment discrimination but instead our legislature is working hard to ensure that local governments never even consider experiments that might equalize pay rates or put formerly incarcerated people back to work.

Senate Bill 353 has been passed in the Senate and is currently awaiting action in the House Commerce and Trade Committee so now would be a great time to contact your Representative and share your opposition to this destructive piece of legislation.