Employment discrimination against persons with criminal records in the United States

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Employment discrimination against persons with criminal records in the United States has been illegal since passage of the Civil Rights Act of 1964. Employers may lawfully consider an applicant's or employee's criminal conviction(s) for employment purposes e.g., hiring, retention, promotion, benefits, and delegated duties. That said, blanket policies or practices e.g., exclusion of all job applicants with convictions from hiring may violate the Act due to the disparate impact on some minorities protected by the act who might have as a subpopulation higher rates of criminal convictions and arrests. Likewise, policies or practices that are not sufficiently narrowly tailored for legitimate business necessity may be violations of the Act - if the discriminatory treatment or impact falls predominately upon those persons protected by the Act. Title VII applies to businesses with more than 15 employees and defines two types of discrimination, disparate treatment and disparate impact. The Equal Employment Opportunity Commission has been enforcing Title VII since it came into effect in 1965. It has periodically issued an enforcement guidance explaining how employers could use criminal records without violating the Civil Rights Act; in April 2012 it published an enforcement guidance requiring companies to establish procedures to show that they are not using criminal records to discriminate by race or national origin. The size of the problem is unknown.

Background[edit]

Title VII of the Civil Rights Act of 1964 makes some forms of discrimination against certain categories of persons in the United States illegal. It defines two types of discrimination: disparate treatment and disparate impact. The Equal Employment Opportunity Commission (EEOC), who has been enforcing Title VII since it came into effect in 1965, has periodically issued an 'enforcement guidance' explaining how employers could use criminal records without violating the Civil Rights Act; As of 1998, the Equal Employment Opportunity Commission had interpreted the Civil Rights Act to require that, where an employment policy which discriminates against criminals will have a disparate racial impact, employers must show a business necessity before automatically disqualifying criminals.[1]

In April 2012 the EEOC published an enforcement guidance[2] requiring companies to establish procedures to show that they are not using criminal records to discriminate by race or national origin. The EEOC indicated that they were investigating "hundreds of charges related to the use of criminal history in employment".[3] EEOC endorsed removing a conviction question from the job application as a best practice in its 2012 guidance.

Many statutes[which?] and regulations ( collectively known as Collateral Consequences prohibit or restrict hiring criminals for many types of jobs, such as Law Enforcement including correction officers health care or education, the military as well as the Peace Corp and/or forbid licensing boards from granting professional licenses. Boards are often required to consider the applicant's moral character and some are authorized to consider criminal prosecutions which did not result in the applicant's actual conviction of a crime e.g., criminal charges dismissed as a result of deferred adjudication or other diversion program. Professions requiring licensing are increasingly numerous including Barbers, Locksmiths, Electricians, General Contractors Subcontractors, and other trades and occupations involving work in private residences and businesses; or with vulnerable members of the public; for example Daycare Workers for children and seniors. Pilots of planes and ships, as well as drivers of passengers (bus and taxi) and cargo, Tow truck drivers, as well as employees with access to airports, and other ports of entry. Emergency Medical Technicians and Paramedics, billiard room employees, attorneys, Process Servers, Notary Publics, Court Reporters, physicians, pharmacists, nurses, embalmers, septic tank cleaners, realtors, accountants, NASD/FINRA securities brokers (investment adviser representatives), insurance agents, Bar Owners (or restaurants owners with alcohol licenses), and sellers of alcoholic beverages, salvage dealers, pawn shop owners. [citation needed]

Felons[edit]

As of 2008, 6.6 to 7.4 percent, or about one in 15 working-age adults were ex-felons.[4] According to an estimate from 2000, there were over 12 million felons in the United States, representing roughly 8% of the working-age population.[5]

Theory[edit]

The Thirteenth Amendment explicitly makes slavery and involuntary servitude for criminals constitutionally permissible in the United States and its territories. Most Americans erroneously believe the 13th Amendment entirely prohibit the practice. The Fourteenth Amendment to the United States Constitution requires "due process" but further expressly permits loss of life, liberty, and property. Thus felony disenfranchisement as well as misdemeanor disenfranchisement. These provisions are moderated in that punishment can not be "cruel and unusual" which is prohibited by the Eight Amendment and by 18 U.S. Code § 1581 and 42 U.S. Code § 1994 which prohibits peonage. The Constitution, Article 1 Sections 9 and 10, also forbids Bills of Attainder but the U.S. Supreme Court has only construed the provision five times (differently) and only after the civil war. Collateral Consequences of conviction although wide-spread and arguably legislation prohibited by Article 1 has thus seen very little substantial litigation. Moreover, there is a large body of case law that these civil statutes and regulations (collateral consequences) are not penal (criminal punishment) and thus not subject to the Constitution's Article 1 or Double Jeopardy 5th Amendment prohibitions. The entire constitution, on the subject-matter of criminal convictions, should be read in pari materia.

The counter-argument: It has been pointed out that constitutional approval of felons' political powerlessness is not the same as constitutional approval of government prejudice toward the politically powerless. Such prejudice may arguably violate the Equal Protection Clause, which itself contains no exclusionary provision authorizing discrimination against felons (although several other provisions explicitly authorize discrimination). 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.[6] As of 1998, seven states absolutely barred felons from public employment. Other states had more narrow restrictions, for instance, only covering infamous crimes or misdemeanors and felonies involving moral turpitude. Some laws have been criticized for being overinclusive;[citation needed]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."[7] 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.[8]

Texas Administrative Regulations requires, for some licensing, 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).[9] While such discretionary guidelines may exist (statutes and regulations), prospective licensees are often provided merely a sham process to better legitimize prejudicial licensure denial. For example, Texas allows an appeal from such licensing commission to an Administrative Law Judge but such judge has no authority to overturn the licensure denial (merely issue an advisory opinion). Further, the Texas Supreme Court has held there is no due process or open courts right to appeal from an administrative proceeding. Thus, the licensing commission's abuse of discretion or erroneous application of law is not genuinely subject to meaningful review and correction. Further, the incompletely cited regulations above, are significantly biased in favor of white privilege, including socio-economic factors, e.g., has the applicant been steadily employed, supported his/her dependents, paid all fines, court costs, restitution. Such licensing standards are particularly unfair to minorities due to lower overall rates on employment and higher rates of poverty and family instability. Further, whereas applicants may submit letters of recommendation from anyone, the regulation is expressly preferential if from the prosecutors, the warden, sheriff or police chief where the applicant resides, or the police who made the arrest. In most instances, due to high caseloads of urban courts, and rates of crime in urban areas, as well as the generally lower-socio-economic status of those convicted, most will lack both access to and community standing to garner such criminal justice officials to vouch much less prepare a written recommendation for them to be licensed. It also violates attorney ethics for an attorney (including a prosecutor) to speak directly to the client (including a criminal defendant) that is represented by opposing counsel. No less problematic, post-conviction licensing is outside the scope of representation for a court-appointed criminal defense lawyers and public defenders. The U.S. Supreme Court has also ruled except for deportation a defendant's lawyer is not constitutionally required to inform such client about adverse employment and licensing consequences.

All offenders[edit]

Data on criminal histories are widely disseminated by private sector agencies.[citation needed] 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.[citation needed] Mississippi does not erase an individual's criminal history, but rather replaces "Conviction" with "Dismissed in Furtherance of Justice" in the disposition.[citation needed] 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.[6]

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, unless the person has been granted a pardon and a release that resulted due to a miscarriage of justice.[citation needed]

Case Law[edit]

Some courts have rejected any notion that basing hiring decisions on criminal convictions constitutes any type of illegal discrimination.[10][11]

See also[edit]

References[edit]

  1. ^ Sharon Dietrich; Maurice Emsellem; Catherine Ruckelshaus (1998), Work Reform: The Other Side of Welfare Reform, 9, Stanley L. & Policy Review, pp. 53, 56 
  2. ^ "Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964". EEOC Enforcement Guidance. U.S. Equal Employment Opportunity Commission. 25 April 2010. Retrieved 4 September 2015. 
  3. ^ ROBB MANDELBAUM (20 June 2012). "U.S. Push on Illegal Bias Against Hiring Those With Criminal Records". NY Times. Retrieved 4 September 2015. 
  4. ^ John Schmitt & Kris Warner (December 2010). "Ex-Offenders and the Labor Market" (PDF). Ctr. For Econ. & Policy Research. Retrieved 4 September 2015. 
  5. ^ Uggen, Christopher; Melissa Thompson & Jeff Manza (2000), Crime, Class, and Reintegration: The Socioeconomic, Familial, and Civic Lives of Offenders 
  6. ^ a b Ben Geiger (Jul 2006), The Case for Treating Ex-Offenders as a Suspect Class, 94 (4), California Law Review, pp. 1191–1242, JSTOR 20439062 
  7. ^ 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 
  8. ^ http://law.justia.com/california/codes/bpc/480-489.html
  9. ^ §213.28 Licensure of Persons with Criminal Offenses [permanent dead link]
  10. ^ 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
  11. ^ 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)