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Is Discrimination Based On Criminal Records Legal?

In 2015, the Brennan Center reported that approximately one-third of the working adult population of the U.S. had some kind of criminal record. Those numbers have risen even since then—but too many employers still engage in practices designed to exclude any potential hire with a criminal record. If you have found yourself in this position, it may seem unfair that these practices are tolerated. However, it does not mean that you are necessarily without any options to assert your rights. Here, we’ll explore if discrimination based on criminal records is legal.

No Law In South Carolina

As of this writing, there is no law in South Carolina that restricts discrimination based on criminal records. However, several jurisdictions in the state have passed their own legislation to drop these types of questions or push them to a later point in the process where an offer in writing has been made. There are certain jobs for which a criminal background check may still be required, but the posting must make this clear, and the check cannot simply be fishing for information.

In jurisdictions where “ban the box” legislation like this is in place, only job-related convictions are considered relevant. For example, when applying for a job working with finances, any conviction related to theft or dishonesty would be considered relevant. However, where no legislation exists, anything in a person’s criminal record is considered fair game, and too often, this includes mere arrests, regardless of whether one is convicted. This puts many applicants at a disadvantage from the beginning.

What to Do If You Face Discrimination

Keep in mind that while employers are, at least in theory, able to turn down an applicant with a criminal record, in reality, the method by which they do so can bump up against other antidiscrimination laws. For example, it has been documented that people of color receive sentences approximately 20 percent longer than white people, and that they are incarcerated in state prisons at roughly five times the rate of white people. This disproportionality can point to a pattern of racial discrimination if criminal record is the major reason that someone is not hired.

If you suspect that you have been turned down for a job solely because of your criminal record, you may not have many options—but it is always worth contacting an experienced employment lawyer on the matter, because they may be able to see the situation from a different perspective. They also may be able to suggest a possibility that you had not considered, which may give you a second chance at a job you want.

Contact A South Carolina Employment Discrimination Attorney

To start a life on the straight and narrow, a person needs a job so that they can support themselves—not restrictions, judgment, and discrimination. If you believe that you have been discriminated against due to your criminal record, calling a South Carolina employment discrimination attorney at the firm of Hitchcock & Potts is a good first step toward a resolution. Attorney A. Christopher Potts and our firm have handled these matters for years—contact us to schedule a consultation for assistance.

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