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Background Check Discrimination against People with Criminal Records

Approximately 1 in 3 Americans have some type of criminal record, whether for minor infractions or serious felonies. While in theory, release from prison ends that chapter of a person’s life, in practice a criminal record can have significant long-term effects. Finding jobs for people with criminal records can be difficult, since it is not against the law to discriminate on the basis of one’s criminal record. However, there are ways to hold a discriminatory employer (or potential employer) accountable for background check discrimination.

Some Protection Under Federal Law

While discrimination based on one’s criminal record is not precluded under law, there are two federal regulations that do effectively limit the practice. The Fair Credit Reporting Act (FCRA) grants certain rights to all U.S. citizens, including the right to know what is in your credit report, the right to dispute any inaccurate information, and most importantly, the right to know if anything in your file has been used against you. It is also a requirement that you be notified if an employer makes a definitive choice to not hire you due to your record.

The other federal law that affects background check discrimination is Title VII of the Civil Rights Act of 1964. Title VII does not ban criminal record discrimination, but it bans discrimination based on characteristics that have been linked to such an issue. For example, Title VII does not permit employment discrimination based on race or national origin. Statistics have shown that for a variety of reasons, there is a disproportionate percentage of people of color in the U.S. justice system, and thus, it is conceivable that by excluding those with a criminal record, one might exclude people of color to an equally disproportionate degree.

If You’ve Been a Victim of Background Check Discrimination

Despite these regulations, sometimes employers do succeed in screening out those with criminal records. In South Carolina, there is no legislation governing this issue, so the two federal laws are your only recourse. In order to prevail on a background check discrimination claim, you must be able to show either the South Carolina Human Affairs Commission (SCHAC) or the Equal Employment Opportunity Commission (EEOC) that you were discriminated against due to your membership in a protected class. If the “class” you reference is not protected, you essentially have no claim.

In very rare cases, however, you may have recourse at the individual level. South Carolina law does not allow those in regulated professions, such as doctors, lawyers or certified public accountants, to be denied the right to practice based on a criminal conviction. The exceptions here are if that conviction was directly related to the practice of their profession, or if they are found unfit to practice by weighing all the evidence (as opposed to only the conviction).

Get Help From a Charleston, SC Employment Discrimination Attorney

More and more, people are coming around to the idea that one mistake should not ruin a person’s life, that they may deserve a chance to rebuild. If you believe you have been unfairly shut off from a potential avenue toward success, consult an employment discrimination attorney today. A. Christopher Potts and his Charleston, SC firm are happy to meet with you to discuss your case.

Contact us today to set up a consultation.


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