Criminal Background Discrimination & “Ban-The-Box” Legislation
Given the numbers of people who have seen the inside of a U.S. prison, it is remarkable that so many employers openly discriminate against those with criminal records. There is a growing movement to change this pattern, but as of this writing, it has not reached the entirety of the country yet. If you suspect you have been discriminated against due to your criminal record, your options are sometimes hard to distinguish.
It has been shown that one of the best ways to reduce recidivism is to connect ex-convicts with meaningful employment. However, employers often presume a lack of moral character on the part of ex-convicts, which means that they decline to hire anyone with a record. Without jobs, many people feel as though they have no other recourse but to reoffend – they have no chance to transition into a more law-abiding member of society. The “box” on job applications asking whether a person has been convicted of a crime can be the difference between success and failure.
As of this writing, South Carolina’s legislature has a ‘ban the box’ bill pending in committee, which would ban any question on job applications dealing with criminal history unless the crime in question directly relates to the position being sought. In addition, the city of Columbia has passed its own ‘ban the box’ bill which affects applicants for city positions. Despite this, ex-offenders can still face discriminatory behavior when seeking employment after being locked up.
Disparate Impact May Apply
If you have reason to believe that you have been discriminated against on the basis of your criminal record, it is important to try and discern intent as best you can. It is considered acceptable to place at least some weight on criminal history, but putting too much value on it can lead to accusations of what is called disparate impact discrimination. Disparate impact occurs when a policy that is facially neutral (that is, not openly written to be discriminatory or malicious) can be shown to have an impact on a specific minority group.
It can be difficult to establish disparate impact simply because the employer will almost always try to paint its effects as coincidence. No employer will openly admit to being discriminatory or bigoted – but intent is not required in order for a policy to be ruled as discriminatory. All that an employee can do is to try and present objective evidence of the disparate impact, which the employer must then refute. This can be a difficult task, but it is not impossible, especially with an experienced attorney on your side.
Contact An Employment Discrimination Attorney
As of this writing, South Carolina does not currently ban asking about criminal history on job applications. But there are ways that discrimination in this context can be even more overt. If you believe that this has happened to you, contact an experienced South Carolina employment discrimination attorney. Attorney A. Christopher Potts and the firm of Hitchcock & Potts have experience in these matters and will work hard to ensure your case is handled in the best way possible. Contact us today to schedule a consultation.