Employment discrimination for criminal record background

A check done in compliance with these requirements entitles the person's employer to a rebuttable presumption that the employer did not act negligently in hiring the person.

Recommended : do such checks on anyone who will be going into a person's home, garage, yards, driveways, or any other areas where the employee could come into contact with people at their homes. With respect to applicants younger than 18, if possible, secure written permission from the child's parent or guardian to conduct background or drug tests. Unless a law requires such a question, do not ask about arrests, since the EEOC and the courts consider that to have a disparate impact on minorities - a company can ask about convictions and pleas of guilty or no contest.

If an EEOC claim is filed, the employer must be prepared to show how the criminal record was relevant to the job in question, i. Conducting a job-relatedness inquiry involves treating each applicant as an individual - the employer must be able to articulate how it determined, with respect to an individual applicant, in light of the applicant's criminal history, and concerning the job in question, that hiring the person would have involved an unreasonable risk of possible harm to people or property.

In Texas, asking only about "convictions" will not turn up some forms of alternative sentencing - for example, under the law of deferred adjudication, if the person given such a sentence satisfies the terms of probation, no final conviction is entered on their record, and the person can legally claim never to have been "convicted" of that offense - however, they would have pled guilty or no contest to the charge such a plea is necessary in order to qualify for deferred adjudication , so if it is necessary job-related to know about about convictions and guilty or no contest pleas, the question would have to be rephrased - see the discussion directly above about the job-relatedness of an offense.

In the case of Kellum v.

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Summary of the Discussion Paper

Sample question about criminal history: "During the past fill in the number years, have you been convicted of, or have you pled guilty or no contest to, a felony offense? If yes, please explain in the space below. Answering "yes" to this question will not automatically bar you from employment unless applicable law requires such action. Try to consider only criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm - the remoteness of an offense is a factor in the job-relatedness determination noted above.

To minimize the risk of an EEOC claim, and to be as fair as possible, try to keep the following in mind:. If an exclusion based on criminal conduct would have a disparate impact on minorities, EEOC expects the employer to develop a "targeted screen" that takes into account the nature and gravity of the crime, how much time has passed since the crime occurred, and the specific functions of the job in question.

Criminal Conviction Discrimination Law | Justia

Any person excluded by such criteria would then have an opportunity for an individualized assessment to determine whether the criteria as applied are job-related and consistent with business necessity. The individualized assessment would involve notice to the individual that the criminal record may result in him or her not being hired, an opportunity for the applicant to explain why the exclusion should not be applied under his or her particular circumstances, and consideration by the employer of whether the individual's new information justifies an exception to the exclusion and shows that the policy is not job-related and consistent with business necessity in the applicant's specific situation.


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Missouri Pacific Railroad Company , F. Never ask an applicant to take a polygraph exam, unless your organization is statutorily required to do so - that would be a violation of the Employee Polygraph Protection Act of , a federal law. An employer may require an applicant to be responsible for submission of official records, transcripts, certificates, and licenses. Very important: in order to position your company as well as possible against potential "negligent hiring" claims, document your efforts to verify the work history and other background information given by the applicant see comment 7 a above.

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Between and the Commission finalised complaints. These complaints have been reviewed as a part of this research project. Complaints received under this Act can be resolved by conciliation between the parties. Conciliation is a process where the Commission brings the parties together - the complainant and the respondent - to try and resolve the matter. Conciliation is a confidential process where both parties are given the opportunity to talk through the issues and reach an agreement.

Race, Employment and a Criminal Record: Devah Pager

Many complaints are successfully conciliated and this complaint information and complaint handling service is free. However, if the matter cannot be conciliated, and it is not discontinued for other reasons provided for in the law, then the Commission will present a report to federal Parliament outlining the key issues and recommendations to resolve the complaint. These complaints do not have any enforceable legal remedies. The following example is a complaint about which the Commission made a report to federal Parliament. In , the Commission made a report to the Attorney-General finding that discrimination on the basis of criminal record had occurred in the case of Ms Christenesen.

Ms Christensen applied for a job as a bartender in the Adelaide Casino. She declared her prior conviction for stealing two bottles of alcohol when she was 15 years old. She was refused employment on the basis that the inherent requirements of the job required her to be trustworthy and of good character.

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While the Commission agreed that these were inherent requirements of the job, it disagreed that there was a sufficiently close connection between Ms Christensen's conviction and the inherent requirements of the position. Several factors came into play in making this decision including:. Like many other areas of discrimination, the issue of criminal record involves a careful balancing of different rights.


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On the one hand former offenders have served their time and paid their debt to society. They have the same right to seek employment as any other member of the community. On the other hand, there may be certain circumstances where a person with a particular criminal record poses an unacceptably high risk if he or she is employed in a particular position. To avoid discrimination on the basis of criminal record, an employer can only refuse to employ a person if the person's criminal record means that he or she is unable to perform the 'inherent requirements' of the particular job.

This means that it must be essential that a person who does a particular job does not have a certain criminal record before an employer can refuse to employ them for this reason. However, there can be difficulties in determining what the inherent requirements of a particular job are, and whether a person's particular criminal record will necessarily disqualify him or her from satisfying those requirements.

Some States and Territories have decided that there are particular types of employment, for instance in working with children, where people with a certain criminal record will not be able to be employed. In addition, some professional and occupational licensing bodies have considered the special characteristics of their field and developed licensing and registration rules which address the relevance of a person's criminal record to that profession.

In other fields there is very little guidance for employers as to what the inherent requirements of a particular job might be and how to assess whether a person meets those requirements. However, no matter what the inherent requirements of a position are, and no matter what a person's criminal record, each person's ability to fulfil those requirements should be assessed on a case-by-case basis to avoid discrimination.

An applicant or employee is not obliged to voluntarily disclose anything about his or her prior record, if they are not specifically asked to do so. In some cases, however, legislation or licensing rules require disclosure.

Employment discrimination against persons with criminal records in the United States

In other cases, the specific circumstances of the position may require disclosure. However, an employer can generally ask a person if she or he has a criminal record and may be entitled to refuse to hire a person because he or she failed to answer a reasonable question, or gave a dishonest answer. When an employee does answer a question about criminal record, the response should be honest and fully candid. However, an employee or applicant may not have to disclose their complete criminal record.

Where there has been a finding of guilt but no conviction is recorded, there may be no requirement to disclose the guilty finding. This situation might change if an employer specifically asks about 'findings of guilt, with or without conviction'. There is also generally no requirement to disclose a spent conviction.

Questions About Your Background

Spent conviction schemes allow criminal record checks to be amended to remove references to some offences after a period of non-offending. However, there are some offences that never become spent, for example sex offences in some jurisdictions.

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