Employment discrimination against persons with criminal records in the United States

Employment discrimination against persons with criminal records in the United States has been illegal since passage of the Civil Rights Act of 1964. 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

Title VII of the Civil Rights Act of 1964 makes discrimination against persons with criminal records 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.

In April 2012 the EEOC 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 EEOC indicated that they were investigating "hundreds of charges related to the use of criminal history in employment". EEOC endorsed removing a conviction question from the job application as a best practice in its 2012 guidance.

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.

Felons

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

Theory

The Fourteenth Amendment to the United States Constitution explicitly permits felony disenfranchisement. But 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 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. 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.

All offenders

Data on criminal histories are 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, unless the person has been granted a pardon and a release that resulted due to a miscarriage of justice.

Case Law

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

See also

• Loss of rights due to felony conviction
• Involuntary unemployment