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Will I lose My Job because of my criminal record? caused by my HIV diagnosis?
Oct 30, 2012

Hi. i live in California. in 2007 i was diagnosed hiv +. Prior to my diagnosis, i had a spotless driving and no criminal records. but since i was diagnosed, i completely lost myself-if you will- and lost my driving due to racking up 12+/- tickets in a year plus a burglary because i found myself homeless since i lost everything because of my diagnosis. fast forward couple of years- since my diagnosis, I've been under care of exceptional hiv Dr and a psychiatrist and at this point, I've finally come to terms with my diagnosis and have an excellent job thru contract work... and county i contract for would like to hire me full time but i have to do a live scan as part of the process... my question is, even though i told them my criminal history, and Im scared they will deny me employment and possibly lose my contract, do i have any legal grounds to explain my criminal history and they accept it? I blame no one but myself for it; however, i am certain had i never been diagnosed, i firmly believe i wouldn't have lost my license and a criminal record. please advise. ps.at the beginning i was feeling totally hopeless, and now Im scared Im going to lose this promise of stability after so much time both my hiv doc and psychiatrist has put in me... if i lose this, i feel i will revert to my hopeless state again which won't be good. again, please advice. thanks.

Response from Ms. Douaihy

Dear Writer,

Thank you for the submission. You ask if there is any legal ground to use your HIV diagnosis to mitigate potential damage caused by your criminal convictions. You raise a legal topic that I believe is exceedingly important in the fight for social equality and economic justice. Every single day, people suffer egregious civil consequences as a result of their arrest or conviction. These collateral consequences may include life-altering harms such as deportation of immigrants, denial of (or termination from) employment, restriction of a professional license, denial of (or ineligibility for) public housing and rent subsidies and ineligibility for federal student loans.These civil penalties can be especially calamitous for people with HIV/AIDS whose long-term health and wellness often depends on stable housing and reliable income.

In response to the reality of collateral consequences, some states have enacted laws aimed at reducing social marginalization that goes hand in hand with conviction of crimes. For example, in New York, you cannot be fired or denied employment based merely on a criminal record, unless that record has some bearing on your ability to do the job. If you are, it could constitute unlawful discrimination. In addition to state law protections, the federal government has limited protections in place to prevent employment discrimination against people with criminal histories. In its attempt to ensure people with criminal histories are afforded equal opportunity in employment, U.S. Equal Employment Opportunity Commission (EEOC) offers guidance to employers regarding the use of arrest or conviction records in employment decisions under Title VII of the Civil Rights Act of 1964. However, there are exceptions for certain professions and government employers. The first thing to find out is whether your employer can legally deny you employment for the convictions you have.

In your case, it is also important to know that California has created the "Certificate of Rehabilitation" which those convicted of an offense may apply for to avoid automatic rejection from housing or certain jobs. In California, a resident convicted of an offense may apply for a certificate of rehabilitation"at the county court in which he or she resides. The certificate of rehabilitation, when granted, is afforded separate legal effect to help a job seeker gain entry into certain licensed professions. To obtain a certificate of rehabilitation, one must complete the imposed sentence, be a resident of the state for a specified period, have no additional legal infractions, demonstrate good conduct, and satisfy other statutory requirements. While I do not know the specific nature of your criminal history, I would highly encourage you to look into and pursue this option. I would ask your employer whether such a certificate would be beneficial. You can read more about certificates of rehabilitation by following the link below.

Now to your specific question about whether your HIV diagnosis may serve as legal grounds to lessen the harm of your criminal conviction. There is nothing I can find in California or federal law that gives special consideration to one's HIV/AIDS status with respect to expunging, lessening or vacating a criminal conviction. However, if you are denied employment because of your criminal record, you should absolutely retain an attorney to advocate on your behalf. There may be much an attorney can do without revealing your status. And, if your attorney thinks it will be helpful and if you give your informed consent for release of your confidential HIV information, your attorney can certainly offer mitigation evidence of your diagnosis and how it dramatically affected you. I wish you all the best during this important time.

California Court System



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