Last week the D.C. Council failed to act on the Returning Citizens Anti-Discrimination Act of 2012, opting instead to adopt a much weaker approach to helping ex-offenders in the city find jobs. If enacted, the Returning Citizens Anti-Discrimination Act would have prohibited employers from inquiring into an applicant’s criminal history until after they make a provisional offer of employment. Employers could then refuse to hire based on a job applicant’s criminal record only if there was a “relevant relationship” between the position sought and the applicant’s record. The act detailed the factors employers should consider, including the facts and circumstances surrounding the criminal history and the extent to which the criminal conduct bore on the applicant’s ability to perform the job. The legislation also would have extended the same protections to those seeking to lease or buy real estate. Many other cities, including Boston and San Francisco, have already adopted similar reforms.
This legislation would open doors for many D.C. residents, and its benefits cannot be overstated. A 2011 report by the Council for Court Excellence, a nonpartisan D.C.-based group, found that 10 percent of the District’s population has a criminal background — more than 60,000 workers. Among African Americans and Latinos, the numbers are even higher. Because of well-documented disparities in criminal enforcement, three out of four of the District’s young African American males are likely to be incarcerated at least once in their lives if current trends continue, according to an analysis by George Washington University Law Professor Donald Braman.
Having a criminal record is like a scarlet letter in the job market. In its report, the Council for Court Excellence suggests that nearly half of D.C. residents with criminal records may have trouble finding work. Most employers rely on sweeping criminal background checks when screening applicants, and many exclude applicants who have any kind of record, with no consideration of the circumstances of the offense, such as how long ago it happened or what the applicant has done since to show that he or she has earned a second chance. The protections in the bill would prevent employers from making the knee-jerk decision to reject applicants with records. Furthermore, by delaying criminal background checks until later in the application process, employers could more fairly assess the skills and talents job-seekers bring to the workforce.
A recent policy adopted by the Washington Metropolitan Area Transit Authority (WMATA), one of the region’s largest employers, demonstrates the urgent need for this reform. WMATA’s policy (copies of which I have seen as part of my work) permanently excludes whole categories of job seekers, including those with certain misdemeanor convictions, from working for the agency. Applicants with minor drug-possession convictions are also harshly affected by the policy: They are prohibited from working at WMATA until five years after their conviction. Perhaps most troubling is that WMATA’s policy applies equally to current employees, meaning that even employees who have been successfully working for years without incident stand in danger of losing their jobs.
WMATA’s policy is wrongheaded for several reasons. It violates guidelines issued this year by the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing employment anti-discrimination laws. The guidelines prohibit criminal record policies that are too broad and exclude otherwise qualified applicants. The EEOC also highlighted the importance of “individualized assessment” reviews, which give job seekers the opportunity to be evaluated based on their entire employment history and background. By automatically excluding large numbers of workers, WMATA does not allow for such review. Unfortunately, it is not alone. Far too many employers are denying qualified people meaningful job opportunities. We cannot afford these policies, especially at a time when the unemployment rates for young African American men in the District hover at three times the national average.
Steady employment is a crucial factor for preventing recidivism. While the Returning Citizens Anti-Discrimination Act would not have guaranteed a job for those who have been incarcerated, it would have ensured that ex-offenders are not prematurely and unfairly turned away. The measure also comports with common sense: If an applicant’s criminal record does not make him unfit for the position sought, there is no reason to deny him the job on that basis.
The author is a staff attorney at the NAACP Legal Defense and Educational Fund.