Arrests and Convictions Employment Discrimination
Discrimination is one ill human behavior that has affected the working environment for so long. It has caused deep emotional injuries in so many victims, as well as ruined their lives, simply because they have been perceived as, or believed to be, different, weaker, (sometimes) dangerous, or just not preferable or likeable due to their race, color, language, accent, style of dressing, ideology, physical appearance, religion, behavior, and so forth.
In the US, discrimination in the workplace is a major persistent issue faced by the US Equal Employment Opportunity Commission (EEOC), an agency formed by the US Congress in 1964 for the enforcement of the stipulations of Title VII the Civil Rights Act. This Act or ordinance is aimed at creating a more equal society by prohibiting any form of discriminatory practice and behavior in the workplace based on nationality, race, religion, color and sex; it encompasses all employment-related decisions from employment screening, to hiring and retention, and covers all firms, whether educational institutions, state and local governments, or private companies, that have 15 or more employees.
An additional employment screening and hiring concern that the EEOC has witnessed develop for the past two decades is the questioning of a job applicant on the possibility of having been convicted in the past or a background check for a possible criminal record and then using the information gathered to reject the applicant. Though this may be a clear form of discrimination, the EEOC cannot hold an employer liable for violating the law unless the use of the applicant’s past criminal record can be proven as only a front to cover the real basis of the rejection, such as race, religion, and so forth. One actual example on this involves a case wherein an employer rejected the application of an African American due to his criminal record, but hired a White applicant who has a comparable criminal record.
Background checks are made by companies to make sure that they get to hire the right people for the job – which means people with the right qualifications, skills, attitude and behavior. Although much greater weight is given to qualifications and skills, considering an applicant’s behavior is equally important, especially if the job requires meeting and dealing with people directly, like a customer service job, watering, delivery service, etc. This is because liability for any wrongdoing an employee commits while doing his/her job can be passed on to the employer, who can be accused of negligent hiring, that is, for hiring individuals who they should have known were prone to displaying violent or dangerous behavior.
To avoid discrimination, as well as to avoid ending up hiring someone who poses an unacceptable risk, the EEOC formulated a three-part test that employers can use whenever considering an applicant with a past criminal record:
- The gravity and nature of the conduct or criminal offense
- How long ago was the crime or the conviction
What is the actual nature of the work the applicant is applying into, where is the work to be performed, the amount of supervision the applicant, once accepted, will receive, how much interact with others is required by the job, and so forth.
In its website, Cary Kane LLP explains that inquiring about arrests or conviction during a job application and interview can only be done by employers in government agencies, the Port Authority or enforcement agencies. Those in private companies definitely are prohibited by the law from making inquiries regarding criminal records, much more from using these as ground to deny one’s application. In the event of an infraction of the Civil Rights Act by an employer then Cary Kane LLP, is one law firm that can guarantee competent representation in a discrimination case.