Updated 4:55 p.m. to correct that job applicant’s right to sue was not in original bill
Legislation that could place new restrictions on how D.C. employers can inquire about the criminal records of their prospective employees could get moving through the D.C. Council after its lead sponsor said he would incorporate changes requested by business interests.
Council member Tommy Wells (D-Ward 6) said Monday that he intends to bring the Fair Criminal Record Screening Act before the Judiciary and Public Safety Committee he chairs next week. To secure the panel’s support for the bill, he said, he has changed a key part that generated opposition from business groups.
The bill, which is in the vein of other “ban the box” bills previously proposed in D.C. and passed in numerous other jurisdictions around the country, is meant to prevent employers from discriminating against job applicants with criminal records simply because they have criminal records. A coalition of worker advocates have strongly backed the bill as a way to address chronic unemployment and recidivism in the ex-offender community.
In the original version of Wells’s bill, employers would be barred from taking an applicant’s criminal convictions into account until after an offer of employment is made. To rescind that offer, employers would have to give a written statement explaining the reasons — which could be justified, for instance, if a convicted bank robber is applying to become a teller or a person convicted of child abuse sought a job putting him or her in contact with youth. Wells said he has changed that provision to allow employers to consider an applicant’s criminal history after a first interview.
In another compromise, Wells declined to include a provision giving a wronged applicant the right to personally sue an employee who may have engaged in discrimination. Instead, all alleged violations will be investigated and adjudicated by the D.C. Office of Human Rights. To encourage aggrieved job-seekers to lodge complaints, they will be entitled to recover a portion of any fines ultimately levied against a discriminatory employer. (Notably, Wells’s committee included funding in its recent committee recommendation allowing the Office of Human Rights to implement the bill.)
Wells said the calculation was simple: Include the stronger language and watch the bill languish, or make the compromise and get the bill moving to the full council before his council tenure ends in January. The D.C. Chamber of Commerce and organizations representing restaurants, hospitals and universities all weighed in on the bill, asking for modifications in letters and testimony submitted at a February hearing.
“Those were the two things that gave them the greatest heartache,” Wells said of his compromises.
Now it’s the worker and ex-offender advocates who have the heartache. Marina Streznewski, executive director of the D.C. Jobs Council, said it was “disconcerting” that Wells would “cave” on key provisions of the bill. The timing of when employers can ask about criminal history is critical, she said, because delaying the review until after a job offer is extended isolates possible ex-offender discrimination.
“Before then, it is very, very easy for an employer to say they did not hire an applicant for any other reason,” Streznewski said. “Having said that, the fact that the bill does ban the box — asking at the outset or putting it on a form — that is a good thing. … I understand the politics, but I’m still disappointed.”
Ari Weisbard, deputy director of the Employment Justice Center, shared concerns about the change in timing and also said not including a personal right to sue is an “extremely concerning” compromise. “It would be very difficult to convince job applicants who are harmed by discrimination to go through this process,” he said. “It’s just so many hours of their time to file a complaint that that is a significant concern.”
Another advocate, Courtney Stewart of the Re-Entry Network for Returning Citizens, called the compromises “unacceptable” and said he was not concerned with claims that the bill would otherwise die. “It could die, because it’s already dead,” he said. “We’re trying to undo something that is unjust and immoral. A lot of people have suffered. … I’m talking about people who could be out raising their families and doing well in the community.”
Streznewski said she would still support this bill’s passage but would seek to strengthen the bill in the future — whether when it goes to the full council or at a later date entirely. “It may be that we have to take an incremental approach,” she said.