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Apple’s refusal to hire felons to construct its headquarters points to a deeper problem

April 8, 2015, 8:01 PM UTC
Courtesy of the City of Cupertino

Apple has long been known for its sleek, pristine design. Jony Ive, the tech giant’s senior vice president of design, has even described the company’s products as “beautiful” and “pure.” Apparently, Apple wants the construction workers building its gleaming, new Cupertino, Calif. headquarters to have criminal records that are just as unadulterated.

The company is banning individuals who have been convicted of a felony from working on the project, which will cost a reported $5 billion.

The company declined to comment on the matter, but a person with knowledge of Apple’s policy says it applies only to ex-offenders with felony convictions in the past seven years and that workers facing pending felony charges are considered for employment on a case-by-case basis.

Apple is by no means alone in using criminal background checks in employment decisions. Almost 7 out of 10 companies conduct such checks, according to the Society for Human Resource Management.

Policies against hiring individuals with criminal records is perhaps the last form of workplace discrimination that is widely accepted. “You could argue that this is the civil rights agenda of our time,” says Maurice Emsellem, a program director for the National Employment Law Project.

In an era of mass incarceration—the U.S. prison population has increased by 400% since 1977—there’s an ongoing movement to stop the use of background checks in hiring because the screenings are thought to discriminate against the more than 70 million American adults with criminal records. The checks have a disproportionately negative effect on persons of color, who make up more than 60% of the country’s incarcerated population and are more likely to be arrested for marijuana charges even though these population groups don’t use or sell the drug at higher rates. The likelihood of a job applicant receiving a callback for an interview for an entry-level position drops by 50% for individuals with a criminal record. Men with criminal records made up 34% of all nonworking men ages 25 to 54, according to a poll by the Kaiser Family Foundation, The New York Times, and CBS News.

To date, 15 states and nearly 100 cities and counties have adopted some sort of “fair chance” hiring or so-called ban the box measures, the latter of which prohibits employers from immediately asking jobseekers to disclose their criminal history. In 1998, Hawaii became the first state to outlaw criminal background checks for job applicants after it passed a ban the box law that applied to public and private employers. Virginia is the latest to adopt a similar rule. On Friday, Governor Terry McAuliffe signed an executive order to remove questions about candidates’ criminal history from state government job applications. Agencies can run criminal background checks on an applicant but only after finding the individual otherwise qualified for a job. McAuliffe encouraged private employers to follow the same procedure.

Some private employers have taken it upon themselves to institute their own ban the box rules. In 2014, Target rolled out a nationwide campaign to eliminate an application question that asked jobseekers about their criminal past. Wal-Mart and Home Depot have done the same.

Ban the box policies “give jobseekers a chance to make contact with prospective employers—contact that [is] crucial to the hiring process,” according to a November 2014 report on the stigma of low-level criminal records in employment in the journal Criminology.

So far, the federal government declined to provide what NELP has been pushing for: President Barack Obama’s signature on an executive order that bans the box nationwide, at least for federal jobs and jobs covered by federal contracts.

The Equal Employment Opportunity Commission has worked to limit the possible discriminatory effects of criminal background checks. In 2012 the agency issued guidance that reaffirmed that criminal background checks are regulated by Title VII of the Civil Rights Act of 1964 because of their “disparate impact” on people of color who are protected against employment discrimination under federal law.

The guidance says that employers should not consider arrest records (as opposed to convictions) without a compelling reason to do so and that blanket restrictions against hiring people with criminal records—such as job ads that say “no one with a felony need apply”—violate federal law. Employers should also take into account the age of the offense and whether it has any potential relation to the particular job, the EEOC says.

The person with knowledge of Apple’s policy said that its ban aims to ensure the quality and safety of the construction project. The person also said that Apple’s policy is in line with those of other companies.

A spokesperson for Facebook, which moved into new headquarters on March 30, told Fortune that the company does not have a policy prohibiting its construction companies from hiring convicted felons.