Waterloo, Iowa — Several civil rights and employment rights organizations and law professors have filed an amicus brief* in support of the City of Waterloo's "Fair Chance/Ban the Box" ordinance.
The ordinance is the first of its kind in Iowa although such ordinances are common throughout the country. It restricts employers from asking about a job applicant’s arrest or conviction record early in the hiring process or deciding not to hire someone based on an applicant’s conviction unless they have a legitimate business reason to do so.
The Waterloo City Council adopted the ordinance in November 2019 to reduce employment discrimination against people with arrest and conviction records, who are disproportionately people of color.
The ordinance makes it illegal for employers to include questions about criminal records on job applications in the city. It specifies that private businesses with more than 15 employees cannot ask questions about criminal records or pending criminal charges during the application process, including during an interview.
The Waterloo ordinance is consistent with existing federal and state civil rights agency guidance and court decisions. Those recognize that basing employment decisions on criminal background alone may violate federal and state civil rights law, because doing so has a disparate racial impact that disadvantages Black applicants.
The Association of Business and Industry (ABI) in January filed a lawsuit to block the ordinance. In April, a district court judge upheld the ordinance, but ABI appealed the decision.
The amicus brief today was submitted jointly by the American Civil Liberties Union (ACLU) of Iowa, the National Employment Law Project (NELP), the Iowa chapter of the National Employment Lawyers Association (Iowa NELA), and law professors with expertise in state preemption and municipal home rule, as well as constitutional law.
Such ordinances are called "fair chance” or “ban the box" ordinances because they eliminate the checkboxes found on many employment application forms that ask about arrest or conviction history. Without an ordinance like Waterloo’s, those applications often are automatically discarded, even if the arrest never led to a conviction. Even if there was a conviction, automatic rejection doesn't allow for individualized assessment of the candidate’s circumstances in light of the particular job sought. People with records, who are disproportionately people of color, are thus denied a fair chance at gainful employment to support themselves, their families, and their communities.
"Fair chance policies are vital to remedying racial disparities in employment. Otherwise, the existing racial disparities in our criminal justice system are only amplified," said ACLU of Iowa Staff Attorney Shefali Aurora.
In Waterloo, the need for this type of law is especially pronounced. Nearly 16 percent of Waterloo's population is African American, the highest in Iowa. The city also suffers from some of the starkest racial disparities in the state and in the nation.
A 2019 study listed Waterloo as the third-worst city in the country for Black Americans, based on factors such as racial disparities in income, education, health, incarceration, and white-Black achievement gaps.
The data also showed that Black Waterloo residents earn only half of what their white counterparts make, and 19.7 percent of Black Waterloo residents were unemployed, compared to only 4 percent of white residents. Iowa disproportionately incarcerates African Americans at a higher rate than almost all other states in the nation. Iowa’s population is less than 4 percent African American, yet the state prison population is about 25 percent African American. In Waterloo, Black residents make up nearly half of all arrests and were arrested at 5.5 times the rate of people of other races.
Nationally, 35 states and more than 150 cities and counties have adopted Fair Chance laws or policies.
"The stigma of criminal justice involvement is often lifelong, with lasting impacts on employment opportunities, even if the offense was minor or the person has merely been arrested but not convicted," said Aurora. "This makes it difficult if not impossible for individuals with a criminal record to re-enter society successfully and be able to earn a living. With a criminal justice system that is dominated by racial disparities, people of color are disproportionately harmed by employers’ criminal background check procedures."
Read the final brief.
*An amicus brief, or "friend of the court" brief, is filed in lawsuits where other parties have an interest in the outcome of the case. It often is filed in order to provide more information to the court about the broader impact and importance of the case.
