Employment discrimination against persons with criminal records in the United States
Employment discrimination against persons with criminal records in the United States sometimes occurs.
According to one estimate, there are currently over 12 million felons in the United States, representing roughly 8% of the working-age population. The Equal Employment Opportunity Commission has interpreted the Civil Rights Act to require that, where an employment policy of a state, municipal, or private employer that discriminates against criminals will have a disparate racial impact, employers must show a business necessity before automatically disqualifying criminals. Some statutes prohibit hiring criminals for certain types of jobs, such as health care or education, and forbid licensing boards from distributing licenses to criminals or require the boards to consider the applicant's moral character. Professions requiring licensing can include Emergency Medical Technicians and Paramedics, billiard room employees, attorneys, physicians, pharmacists, nurses, barbers, embalmers, septic tank cleaners, realtors, accountants, NASD/FINRA securities brokers (investment adviser representatives), insurance agents, contractors, Bar Owners (or restaurants owners with alcohol licenses), and sellers of alcoholic beverages. Such regulations sometimes result from lobbying by professional communities seeking to raise barriers to entry.
As of 1998, seven states absolutely barred felons from public employment. Other states had more narrow restrictions, for instance, only covering infamous crimes or felonies involving moral turpitude. Some laws have been criticized for being overinclusive; for instance, a law banning all criminals from working in health care jobs could prevent a person convicted of bribery or shoplifting from sweeping the halls of a hospital. California law provides that a criminal record can affect one's application for a professional license only if "the crime or act is substantially related to the qualifications, functions and duties of the business or profession for which the application is made." Further, a certificate of rehabilitation can prevent a person from being denied a license solely on the basis that he has been convicted of a felony. Texas law requires that a variety of factors, such as the nature and seriousness of the crime, the relationship of the crime to the purposes for requiring a license to engage in the occupation, the amount of time since the person's last criminal activity, and letters of recommendation, be taken into account even when the applicant has a felony.
Data on criminal histories is widely disseminated by private sector agencies. It is difficult for a job applicant to prove that a prospective employer illegally discriminated against the applicant based on information on expunged convictions or dismissed charges.Mississippi does not erase an individual's criminal history but rather replaces "Conviction" with "Dismissed in Furtherance of Justice" in the disposition. Some state justice systems do not allow arrestees to deny arrests for which the charges were dismissed, and some do not allow those whose charges were expunged to deny the conviction.
The expungement or sealing of records never erases criminal convictions or arrests. The records are hidden from public view. They will always be visible to law enforcement, government agencies and court systems.
The Fourteenth Amendment to the United States Constitution explicitly permits felony disenfranchisement. But it has been pointed that constitutional approval of felons' political powerlessness is not the same as constitutional approval of government prejudice toward the politically powerless. Such prejudice may violate the Equal Protection Clause, which contains no provision authorizing discrimination against felons. A "discrete and insular" minority subject to prejudice, in particular, may be considered particularly vulnerable to oppression by the majority, and thus a suspect class worthy of protection by the judiciary.
However, despite the above theory having been advanced in an article written by a law student, courts have consistently rejected any notion that basing hiring decisions on criminal convictions constitutes any type of illegal discrimination. Judge Jose A. Gonzalez of the United States District Court for the Southern District of Florida upheld, against a civil rights challenge, a trucking company's refusal to hire convicted felons, in E.E.O.C. v. Carolina Freight Carriers Corp., 723 F.Supp. 734 (S.D. Fla. 1989). In that case, Judge Gonzalez ruled against the EEOC, saying that if applicants "do not wish to be discriminated against because they have been convicted of theft then they should stop stealing." Another case held that it is not racial discrimination that deprives felons, black or white, of their ability to obtain employment “but their own decision to commit an act for which they assume the risks of detection and punishment.” Johnson v. Bush, 214 F.Supp.2d 1333, 1341 (S.D. Fla. 2002). Other cases in which the refusal to hire criminals was upheld against discrimination claims include Carter v. Maloney Trucking and Storage Inc., 631 F.2d 40, 43, 24 EPD ¶31,348 (5th Cir. 1980) (employer refused to rehire an ex-employee who had murdered a co-worker, not solely because of his conviction, but because he was a dangerous person and friends of the murdered man might try to retaliate against him while he was on the job); Osborne v. Cleland, 620 F.2d 195, 22 EPD ¶30,882 (8th Cir. 1980) (employee who had forfeited collateral on a charge of “sexual procurement” was unfit to be a nursing assistant in a psychiatric ward); Lane v. Inman, 509 F.2d 184 (5th Cir. 1975) (city ordinance which prohibited the issuance of taxicab driver permits to persons convicted of smuggling marijuana was “so obviously job related” that “it could not be held to be unlawful race discrimination,” irrespective of any adverse impact); McCray v. Alexander, 30 EPD ¶33,219 (D. Colo. 1982), aff’d 38 EPD ¶35,509 (10th Cir. 1985) (supervisory guard was discharged for killing a motorist, while off-duty, in a traffic dispute because employer concluded that, despite his acquittal, the conduct showed poor judgment on the use of deadly force).
In addition to courts not holding criminal record checks to constituted discrimination under the Constitution, some note that even under Title VII of the Civil Rights Act of 1964, "Felons are not a protected class . . . Title VII only bars discrimination based on race, color, religion, sex and national origin. What makes it difficult for felons -- black or white -- to find work is not racial discrimination, but their own past decisions to commit crimes that carry the risks of detection and punishment."
Even if the notion of criminals as a suspect class were advanced somewhere other than a single article, others have noted that a permissible rational basis exists for discriminating against that class. Mandating the hiring of convicted criminals can "place co-workers and customers at unnecessary risk" and "make it even harder for some minority workers to find jobs." There are "reams of well-established evidence regarding the recidivism of felons and the enormous liability faced by employers when their employees commit crimes." "'Negligent hiring lawsuits" against employers are now commonplace whenever workplace violence or other work-related crime occurs." And "to say that an applicant's honest character is irrelevant to an employer's hiring decision is ludicrous. In fact, it is doubtful that any one personality trait is more important to an employer than the honesty of the prospective employee." 
In addition, studies show that employers who check criminal backgrounds are more likely to hire African-American workers.
- Uggen, Christopher, Melissa Thompson, and Jeff Manza (2000), Crime, Class, and Reintegration: The Socioeconomic, Familial, and Civic Lives of Offenders
- Sharon Dietrich, Maurice Emsellem & Catherine Ruckelshaus (1998), Work Reform: The Other Side of Welfare Reform 9, Stanley L. & Policy Review, pp. 53, 56
- Author(s): Elena Saxonhouse (May 2004), Unequal Protection: Comparing Former Felons' Challenges to Disenfranchisement and Employment Discrimination 56 (6), Stanford Law Review, pp. 1597–1639, JSTOR 40040198
- §213.28 Licensure of Persons with Criminal Offenses
- Ben Geiger (Jul 2006), The Case for Treating Ex-Offenders as a Suspect Class 94 (4), California Law Review, pp. 1191–1242, JSTOR 20439062
- Walter Olson (Manhattan Institute), "How Employers Are Forced to Hire Murderers and Other Felons," Wall Street Journal, June 18, 1997, quoted in EEOC to Employers: Hire that Felon, National Center for Policy Analysis, June 18, 1997
- Equal Employment Opportunity Commission Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (1982)
- EEOC's protection of felons could hurt minority hiring, Washington Examiner, June 4, 2012
- Bovard, James, Lost Rights: The Destruction of American Liberty, p. 170