House of Delegates Refuses to Ban the Box

by Frank Knaack, Director of Public Policy and Communications
For an ever growing number of Virginians, the criminal history background box on employment applications makes it difficult for an otherwise qualified applicant to get the job.  It’s past time for Virginia to ban the use of this box on employment applications – it is discriminatory, unnecessary, and unfair.
The numbers alone should be enough to convince all legislators that the criminal history box on employment applications is discriminatory and should be removed.  Here are just a few:

• In 2010, African Americans received 43.4% of all marijuana possession arrests in the Commonwealth despite making up only 19.8% of the population (and, African Americans and whites use marijuana at roughly the same rate).
•  According to the U.S. Department of Justice’s Bureau of Justice Statistics, while 1 in 17 white men are expected to serve time in prison during their lifetime (a staggering number), 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 will also be disproportionally impacted by questions concerning an applicant’s criminal background.  Unfortunately, last Wednesday a House of Delegates committee killed legislation that would have removed this box from state agency employment applications.  SB 250 would have also forbid state agencies from inquiring into an applicant’s criminal conviction background until a conditional offer of employment was made.  At the same time, the bill would have permitted state agencies to rescind the employment offer if the applicant’s criminal conviction “directly relates to the duties and responsibilities of the position.”  This bill was a win, win!  It would have better protected the Commonwealth and ensured that Virginians were judged on their merit, and not their mistakes.
Here are some more reasons why the bill should have passed:
It would have ensured the Commonwealth was not required to hire Virginians whose criminal conviction is related to the job.  A state agency should not be forced to hire a convicted embezzler to keep its books.  Under the legislation, after a conditional offer is made the state agency retains the right to deny employment if the crime the prospective employee was convicted of is directly related to the job description of the offered position.
It would have ensured a fair opportunity for Virginians seeking a second chance.  The repercussions of a criminal conviction extend well beyond the specific criminal penalty handed down.  Questions regarding an applicant’s criminal background may be used to screen out an applicant, even if the applicant is otherwise fully qualified.  Denying a person’s application without considering their qualifications or rehabilitation is unfair; it prevents people who’ve completed their sentence from getting a fair chance at a fresh start.
It would have better protected 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 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 amended version of SB 250 (not approved by the House) would have established clear criteria for state agencies to consider during the screening process when evaluating a person’s prior criminal record.  These criteria will better protect state agencies from claims of discrimination under Title VII.
It would have helped make 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.  Banning the box will better ensure that these individuals have an honest shot at finding employment.  It’s a first step toward realizing this key element to reducing recidivism and making our communities safer.
While the bill died in the House, like with the bill to repeal Virginia’s invasive mandatory 24-hour ultrasound law, we made progress this year.  SB 250 passed the Senate.  We will be working throughout the next year to convince the House of Delegates that it’s time for the criminal history box to go.  That it’s time to move away from a tough on crime mindset that ignores evidence based solutions to reducing crime in our communities.
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