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“Ban The Box” & Employment Discrimination Against Ex-Convicts

The World Prison Brief lists the United States as having the highest prison population per 100,000 people in the world, being far and away the leader among industrialized nations. However, it is no secret that U.S. prisons generally focus on punishment rather than rehabilitation. As such, convicts are generally not treated well even after they are released. This often manifests in many jobs being closed off to them for the mere act of having a criminal record, when such a person might be a good worker. If this is happening to you, you may want to understand the wider ramifications. Learn more about the Ban The Box campaign and employment discrimination against ex-convicts.

The Nation Is Changing

Historically, those with criminal records simply had to fend for themselves and try as many opportunities as they could in order to find a job upon release. However, over time, civil rights organizations began to take up the cause of those who were effectively locked out of employment post-conviction, even though most had already served their time. Nonprofit grassroots organizations like Legal Services for Prisoners With Children (through their project All of Us or None) began to promote what has been called the “Ban the Box” initiative to level the playing field.

Now, 31 states have some form of ‘ban the box’ legislation on the books, either for public employers, private employers, or both. South Carolina is not among them, though numerous bills have been brought up in the legislature in recent years. As of this writing, no real progress has been made on the issue, though many private employers have chosen to scrap questions regarding criminal history from their hiring questionnaires on their own initiative, such as American Airlines and Starbucks. If you do not work for one of these companies, however, an employer may still ask about any criminal history, and it can lead to denials.

Intent vs. Impact

While South Carolina has not adopted Ban the Box-style legislation, this does not mean that South Carolina employers are able to discriminate against those with criminal records with impunity. Employment discrimination issues arise when an employer can be shown to have violated a relevant law, most often Title VII of the Civil Rights Act of 1964. While there are no specific federal laws which ban the box or otherwise prohibit employers from asking about criminal history, the Equal Employment Opportunity Commission (EEOC) did issue guidance which is very relevant for anyone who feels that their criminal history has cost them a job or an interview opportunity.

The guidance goes into the theory of intent versus impact, seen often in legal circles. This means that while a law may seem neutral as passed (“de jure”), it may actually impact minorities or otherwise disprivileged communities in a negative way, regardless of intention (“de facto”). For example, if an employer does not openly discriminate on the basis of race but chooses to discriminate on the basis of criminal history, they may still wind up discriminating against people of color indirectly given that the U.S. justice system routinely arrests more people of color. When they are convicted, the sentences given to people of color tend to be harsher than those imposed on whites.

Seek An Experienced Employment Discrimination Lawyer

Hopefully, South Carolina will adopt legislation banning the box. Until that happens, it is important to keep in mind that you still have rights, regardless of your criminal record. If you believe that your past criminal history unjustifiably cost you an opportunity, contacting an employment discrimination attorney can help you determine how best to proceed. Attorney A. Christopher Potts has handled many of these cases and is happy to try and help you with yours. Contact Hitchcock & Potts today to schedule an appointment.

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