Employment discrimination against persons with criminal records in the United States

Employment discrimination against persons with criminal records in the United States sometimes occurs.

Contents

Felons

According to one estimate, there are currently over 12 million ex-felons in the United States, representing roughly 8% of the working-age population.[1] 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 ex-offenders will have a disparate racial impact, employers must show a business necessity before automatically disqualifying ex-offenders.[2] Some statutes prohibit hiring ex-offenders for certain types of jobs, such as health care or education, and forbid licensing boards from distributing licenses to ex-offenders or require the boards to consider the applicant's moral character. Professions requiring licensing can include ambulance drivers, billiard room employees, attorneys, physicians, pharmacists, nurses, barbers, embalmers, septic tank cleaners, realtors, accountants, contractors, 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 ex-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 ex-offenders 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."[3] 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.[4] 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.[5]

All offenders

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. California 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.[6]

Constitutional issues

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.[6]

References

  1. ^ Uggen, Christopher, Melissa Thompson, and Jeff Manza (2000), Crime, Class, and Reintegration: The Socioeconomic, Familial, and Civic Lives of Offenders 
  2. ^ Sharon Dietrich, Maurice Emsellem & Catherine Ruckelshaus (1998), Work Reform: The Other Side of Welfare Reform, 9, Stanley L. & Policy Review, pp. 53, 56 
  3. ^ Author(s): Elena Saxonhouse (May, 2004), Unequal Protection: Comparing Former Felons' Challenges to Disenfranchisement and Employment Discrimination, 56, Stanford Law Review, pp. 1597–1639, JSTOR 40040198 
  4. ^ http://law.justia.com/california/codes/bpc/480-489.html
  5. ^ §213.28 Licensure of Persons with Criminal Offenses, http://info.sos.state.tx.us/pls/pub/readtac$ext.TacPage?sl=T&app=9&p_dir=F&p_rloc=137017&p_tloc=14910&p_ploc=1&pg=7&p_tac=&ti=22&pt=11&ch=213&rl=29 
  6. ^ a b Ben Geiger (Jul., 2006), The Case for Treating Ex-Offenders as a Suspect Class, 94, California Law Review, pp. 1191–1242, JSTOR 20439062