Having a criminal background, no matter how small, is a major issue for many employers. In some situations, an employer may legally refuse to hire someone with a criminal record, but in many others, they may not. If you feel that you have experienced criminal background discrimination in South Carolina, you should be aware that you may be able to file for compensation.
Criminal History Can Be Used
South Carolina employment law prohibits discrimination on the basis of “race, religion, color, sex, age, national origin, or disability.” It also bars unfair treatment for pregnant workers unless an employer can establish that granting reasonable accommodations would be an “undue hardship” on their business. However, no current law forbids discrimination on the basis of criminal record. While many employers choose to “ban the box” and not collect that type of information at an employment interview, they have the right to do so, and most private-sector employers do ask to simply avoid potential issues with trustworthiness in the future.
It is possible for an employer to require a background check and to make employment decisions based on the information received from that check—but they must inform the employee or applicant of that fact, and they must also take care to ensure that the information is used appropriately, in a non-discriminatory fashion. For example, one must ask all applicants about their criminal history, rather than just asking one racial group or national origin group. Failure to do so will open that employer up to accusations of discrimination.
Do Not Exclude Everyone
If you suspect that your criminal background has been used against you in a way that you believe is discriminatory, looking at the relevant laws can help you determine whether you have a case or not. For example, the federal Fair Credit Reporting Act (FCRA) holds that applicants and employees must be told that their employer (or potential employer) may use information from a background check in making employment-based decisions. Failure to give that notice can land an employer in hot water.
While most employers may think that they can avoid charges of discrimination simply by refusing all employees with criminal records, this may not save them, depending on the specific nature of their business. The Equal Employment Opportunity Commission (EEOC) has come out against excluding everyone with a criminal record from the employment process, mostly because of external factors that disproportionately affect people of color. A 2017 study from the U.S. Sentencing Commission found that on average, black men serve 19.1 percent longer sentences than white men do for the same or similar crimes. Black men also make up a larger percentage of the prison population than white men, artificially inflating the number of criminal records among people of color.
Call A South Carolina Employment Discrimination Lawyer Today
While various bills to “ban the box” in South Carolina have unfortunately died in committee in recent years, this does not mean that you have no recourse at all if you face discrimination on the basis of your criminal background. Calling an employment discrimination lawyer is a good idea so that you can discuss your options. Attorney A. Christopher Potts has been handling these cases for many years, and the firm of Hitchcock & Potts is ready to assist you. Call us today to speak to an attorney.