A Just Measure of Forgiveness: Reforming Occupational Licensing Regulations for Ex‐Offenders Using BFOQ Analysis

Abstract

In the United States, over 600,000 offenders rejoin society annually, though little has been done to facilitate their transition from the prison to the community. Offender reentry into the workplace has emerged as a particular concern, given that many statutes prohibit public employment for ex‐offenders and create obstacles to private‐sector employment through occupational licensing requirements. These mandates may explicitly reject ex‐offenders, or require “good moral character” or job/relationship tests that all but eliminate meaningful employment options. Several states are reconsidering the implications of these prohibitions, but a clear framework for assessing the validity of exclusionary occupational mandates is often lacking. This article proposes that the bona fide occupational qualification (BFOQ) defense found in employment discrimination law provides a helpful framework for guiding these reform efforts.