by Frank Knaack, Director of Public Policy and Communications
For an increasing number of Virginians, the criminal history background box on employment applications makes it difficult for an otherwise qualified applicant to get a job.  On Friday, Governor Terry McAuliffe took a major step toward addressing this problem when he issued Executive Order 41, which prohibits asking about criminal history on state employment applications (with an exception for sensitive positions), ties any inquiry about past criminal histories to the requirements of individual jobs, and ensures that criminal background checks are only done by state agencies after a person has been found eligible for a job and is being considered for employment.  Thanks to the Governor’s action, former offenders applying for state employment will now be judged on their merit instead of their past mistakes.  And, the impact of “banning the box” on state employment applications will be felt far beyond the directly impacted individuals.
The Governor’s action is a step toward realizing a key element to reducing recidivism and making our communities safer.  According to the U.S. Department of Justice (DOJ), more than 650,000 individuals are released from prison every year. To reduce the recidivism rate for these individuals, the DOJ has identified three key elements to successful re-entry into our communities. One of these key elements is helping these individuals find and keep a job.  Thus, by banning the box from state employment applications, former offenders applying for these positions will face one less hurdle to securing employment.
People of color are disproportionately impacted by criminal history background checks.  For example, while African Americans and whites use marijuana at roughly the same rate, in 2010 African Americans received 43.4% of all marijuana possession arrests in the Commonwealth despite making up only 19.8% of the population.  This disparity is not limited to Virginia, as the U.S. Department of Justice’s Bureau of Justice Statistics reported, while 1 in 17 white men are expected to serve time in prison during their lifetime, the number jumps to 1 in 6 for Hispanic men and 1 in 3 for African American men.  Because people of color are disproportionately caught up in our criminal justice system, they are disproportionally impacted by questions concerning an applicant’s criminal background.  Friday’s decision is a first step toward reducing the disproportionate impact that our criminal justice system has on people of color.
Finally, the action will better protect state agencies from claims of discrimination. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin. As part of its effort to eliminate unlawful discrimination in employment screening, the U.S. Equal Employment Opportunity Commission (EEOC) issued a guidance document for entities covered by Title VII, including state and local governments. To meet the requirement that job selection criteria or procedures not discriminate, an employer must show that the selection criteria or selection procedures are “job related and consistent with business necessity.” The guidance says that the individualized screening process used in considering a person’s criminal record must consider “at least the nature of the crime, the time elapsed, and the nature of the job” or otherwise comply with the EEOC Uniform Guidelines on Employee Selection Procedures.  The Governor’s action will help establish clear criteria for state agencies to consider during the screening process when evaluating a person’s prior criminal record.
Former offenders deserve a fair chance at a fresh start.  We commend the Governor for taking this action and urge local government leaders and Virginia businesses to follow the Governor’s lead.  The criminal history box is discriminatory, unfair, and may undermine successful re-entry.
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