For many years, states all across the U.S. have debated and passed laws referred to as ‘Ban the box” legislation, which restrict employers from being able to inquire into a person’s criminal past at the beginning of the employment process. There has been an effort to pass a similar law in South Carolina since at least 2014, but as of yet, the process has not been successful. It is still a good idea to be aware of this effort, especially if you are a person with a criminal record who might be affected for the better.
Is It Discriminatory?
Title VII of the Civil Rights Act of 1964 prohibits discrimination based on certain specific characteristics, namely race, religion, gender/sex, and national origin. Disability, pregnancy and age are also protected characteristics for the purposes of antidiscrimination laws. Criminal background does not appear on the list. However, what many do not realize is that there is implicit discrimination in asking for it, often with no conscious intent on the part of the employer.
Employers commonly ask applicants for jobs about their criminal history, arguing that they do not have an interest in hiring dishonest or violent employees. However, too often, employers who ask these questions ignore the wider implications, as well as the implicit reasons why asking them is potentially discriminatory. For example, merely asking about past incarcerations ignores the fact that people of color, particularly African-Americans, are incarcerated between five and ten times more often than white people. This is most often because of inequitable standards in policing, rather than any inherent criminality.
What Are My Options?
If you are a job applicant who has been denied advancement in the hiring process, you would not be able to file a complaint based on criminal record discrimination. It is plausible, however, that you would be able to demonstrate other grounds. Because so many factors come packed into criminal record discrimination, so to speak, you may be able to show that discrimination based on a protected characteristic has taken place.
The most common characteristic implicated in this type of inequity is race, but national origin also may be a factor as well. Immigrants and people of Hispanic origin are also incarcerated and convicted at higher rates than whites for reasons that are not benign or irrelevant. The Prison Policy Initiative (PPI) estimates a rate of roughly two to one, in large part because many people of Hispanic origin, especially recent immigrants, may lack access to English interpretation or legal assistance if they run afoul of the law. Both race and national origin are protected under Title VII. It is a good idea to discuss your case with an experienced attorney if you believe you have been subjected to mistreatment based on either.
Contact An Employment Discrimination Lawyer
As of this writing, there is a bill in committee in the South Carolina House of Representatives that would seek to ‘ban the box’ if passed. However, you still have options while the bill is debated. Contact the Charleston firm of Hitchcock & Potts if you have been discriminated against. Attorney A. Christopher Potts is happy to help answer your questions about your situation.