- The Washington Times - Sunday, December 2, 2012

Former D.C. Mayor Marion Barry has joined a chorus of lawmakers across the country pushing legislation that prohibits employers from discriminating against applicants with a criminal record unless there is a significant nexus between the crime and the job.

The issue is grabbing attention nationwide, spurred on by efforts at both the local and federal levels amid research that shows convicted felons will serve time in the court of popular opinion, and particularly among employers, long after they pay their debt to society in the prison yard.

Mr. Barry, who served as the city’s mayor for 16 years but remains best known for his 1990 arrest on crack cocaine charges, is championing a bill that would prevent discrimination against ex-offenders by adding a clause to the city’s Human Rights Act of 1977 prohibiting discrimination based on criminal history. The bill would establish those with criminal or arrest records as a protected class in the same manner that discrimination is prohibited based on race, religion and sexual preference.

“In America, it is wrong,” Mr. Barry, a Democrat who now represents Ward 8 on the D.C. Council, said of denying ex-offenders a chance at employment. “And we know discrimination exists throughout America.”

In general, the bill would prohibit questions about ex-offenders’ arrests or criminal record during the hiring process or real estate transactions until a conditional offer has been extended, although there are exemptions to the proposed law that take into account violent offenses, the relation of the offense to the job being sought and blanket exemptions for certain positions.

“I don’t expect a bank robber to be hired by a bank,” he said. “That’s craziness.”

Limited hiring in the wake of the economic recession has also complicated job prospects for former criminals. And research shows that a reluctance to hire ex-offenders has an outsized impact on minorities. A 2010 study by the Pew Charitable Trusts found that incarceration decreased earnings for white males by 2 percent, Hispanic males by 6 percent and black males by 9 percent.

Bills to address the hiring prospects of former inmates have been considered across the country in recent years.

In New Jersey, a Democratic assemblywoman introduced a bill in February that is similar to Mr. Barry’s bill in that it “prohibits public and private employers from automatically disqualifying ex-offenders from employment.”

The city of Philadelphia broke ground in March 2011 when it passed a law to “ban the box,” a reference to the spot on job applications that asks about a person’s criminal history. Although more than 40 cities and counties have passed similar legislation, the city set a benchmark for the movement by becoming the first jurisdiction to ban up-front discrimination by public and private employers, according to the National Employment Law Project.

In April, the U.S. Equal Employment Opportunity Commission urged employers to avoid practices that immediately exclude applicants based on a criminal record. Rather, it advises employers to limit their questions about an applicant’s criminal past to how it may relate to the job at hand.

Often the bills are greeted with controversy.

When thousands of ex-offenders planned to demonstrate at the state capitol in St. Paul, Minn., in January in support of “ban the box” legislation, an attorney from the Minnesota Chamber of Commerce told Minnesota Public Radio that the law would be a burden on businesses and is not necessary in light of federal regulations that guide equal employment practices.

In the District, many laud the bills’ goal — allowing ex-offenders to be productive members of society instead of backsliding into a life of crime.

But the proposal has produced infighting among city lawmakers wary of the concerns of the business community and decision-makers divided on the best way to give people with a criminal record a second chance in life without kick-starting lawsuits or putting law-abiding citizens at risk.

Members of the D.C. Chamber of Commerce have deemed the bill “unworkable” out of a fear that businesses will face discrimination lawsuits.

In urging support for his measure, Mr. Barry rattled off a list of cities and states that have passed similar legislation.

“Why should the District be on the back of the bus?” he said. “We should be in the forefront.”

But business interests seem more inclined to support a separate bill by D.C. Council Chairman Phil Mendelson, a Democrat, that would decrease the number of years that ex-offenders must wait to apply to have their criminal records sealed for certain crimes. It also creates a “certificates of good standing” program to document ex-offenders’ progress after their encounters with the criminal justice system and grants employers limited liability if they are sued for negligence after making a good effort to check out an ex-offender during the hiring process.

Mr. Mendelson tried to vote down Mr. Barry’s bill at the committee level. Although he did not succeed, he may have the last laugh if he makes sure Mr. Barry’s bill does not appear on the council’s legislative agenda before the end of the year.

“The [Barry] bill, I think, runs the risk of generating an awful lot of litigation,” he said.