by Frank Knaack, Director of Public Policy and Communications
aclu03_dlr_sentencingThis week the Virginia Senate will vote on a bill that would help reduce recidivism, reduce the likelihood of discrimination in state hiring practices, and give Virginians seeking state employment a fair opportunity at a second chance. It should be a no-brainer. But, like many common sense bills at the General Assembly, it faces an uphill battle.
Senate Bill 1017 ensures that state agencies cannot ask a prospective employee if they have ever been arrested, charged with, or convicted of any crime, with certain exceptions. But, the bill also allows a state agency to ask a prospective employee about their criminal conviction background after a conditional offer of employment is made. And, the state agency may withdraw the offer of employment “if the prospective employee has a conviction record that bears a rational relationship to the duties and responsibilities of the position.” For example, a state agency would not be forced to hire a convicted embezzler to keep its books. SB 1017 would protect the Commonwealth and ensure that Virginians are judged on their merit, and not their mistakes.
Why is this bill so important? 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.
In addition, African Americans are disproportionately caught up in our criminal justice system, and thus are disproportionately harmed by the criminal history background box on employment applications. For example, even though African Americans and white Virginians use marijuana at roughly the same rate, African Americans are 2.8 times more likely to be arrested for marijuana possession in Virginia. In Arlington, African Americans are almost eight times more likely to be arrested. This bill is a modest step toward remedying the long-term consequences of a criminal justice system that disproportionately harms African Americans.
This bill would also 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 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.  SB 1017 would establish clear criteria for state agencies to consider when evaluating a person’s prior criminal record.  These criteria will better protect state agencies from claims of discrimination under Title VII.
Finally, SB 1017 would help 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.
SB 1017 is a win-win. It will protect Virginia and give people a second chance to make an honest living.
What can you do? Contact your state legislators and urge them to support SB 1017!
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