Can An Employer Discriminate Against Me Based On My Criminal Record?
Both South Carolina state law and U.S. federal law contain several anti-discrimination laws, with specific characteristics that may not be used as reasons to discriminate. However, as of this writing, having a criminal record is not a protected characteristic. That means, for the most part, potential landlords and employers can discriminate against a person based on their criminal record. If you’re in this kind of situation, contacting a dedicated attorney can help articulate your options.
Few Current Options
South Carolina law on employment discrimination mirrors U.S. federal law, with its Human Affairs Law prohibiting unfair treatment on the basis of race, color, sex/gender, national origin, disability, age, and a host of other characteristics. Sexual orientation and gender identity are protected characteristics at the federal level, after the ruling in Bostock v Clayton County in 2020, but not at the state level. However, criminal history doesn’t appear on lists of protected characteristics, and because of this, many employers will subtly endeavor to discriminate against anyone who has been convicted of a crime.
If you suspect this has happened to you, you don’t currently have many options unless you can establish that the treatment you experienced was not only based on your criminal record. For example, statistics suggest that people of color are disproportionately viewed as threatening by white people, even when any criminal record they may have is for non-violent offenses. If you were treated unfairly in such a situation, you may be able to allege that you experienced discrimination based on race as well as criminal record.
Things Are Changing
Despite this bleak picture, things are changing. Neither South Carolina nor federal authority currently prohibit discrimination in the private sector based on the presence of a criminal record. However, many states and cities have taken the so-called “ban the box” pledge.
As of September 2020, 36 states and over 150 cities, as well as the District of Columbia, have enacted some form of legislation requiring that employers not inquire about past criminal history until a certain point in the hiring process. Some jurisdictions have even removed the questions about conviction history from job applications entirely.
South Carolina may even begin to follow suit. In May 2021, a bill was introduced in the state Senate to amend current law to forbid employers from “inquir[ing], consider[ing], or requir[ing] disclosure” of a criminal history or one’s actual criminal record until a conditional job offer has been made to an applicant. It’s very early in the process, but the fact that similar bills have been introduced in the legislature in past years is potentially a positive sign.
Contact A South Carolina Employment Discrimination Attorney
Unfortunately, employers can discriminate against an individual based on their criminal record. While only specific cases of criminal record-based discrimination may be prosecutable in this day and age, times may be changing. If you have questions or concerns about alleged mistreatment based on your criminal history, contact a South Carolina employment discrimination attorney today. Attorney A. Christopher Potts is happy to try and assist you.
