Employment discrimination against persons with criminal records in the United States
Employment discrimination against persons with criminal records in the United States has been illegal since passage of the Civil Rights Act of 1964. Employers may lawfully consider an applicant's or employee's criminal conviction for employment purposes e.g., hiring, retention, promotion, benefits, and delegated duties. That said, blanket policies or practices e.g., exclusion of all job applicants with convictions from hiring may violate the Act due to the disparate impact on some minorities protected by the act who might have as a subpopulation higher rates of criminal convictions and arrests. Likewise, policies or practices that are not sufficiently narrowly tailored for legitimate business necessity may be violations of the Act—if the discriminatory treatment or impact falls predominantly upon those persons protected by the Act. Title VII applies to businesses with more than 15 employees and defines two types of discrimination, disparate treatment and disparate impact. The Equal Employment Opportunity Commission has been enforcing Title VII since it came into effect in 1965. It has periodically issued an enforcement guidance explaining how employers could use criminal records without violating the Civil Rights Act; in April 2012 it published an enforcement guidance requiring companies to establish procedures to show that they are not using criminal records to discriminate by race or national origin.
The size of the problem is unknown.
Background
Title VII of the Civil Rights Act of 1964 makes some forms of discrimination against certain categories of persons in the United States illegal. It defines two types of discrimination: disparate treatment and disparate impact. The Equal Employment Opportunity Commission, who has been enforcing Title VII since it came into effect in 1965, has periodically issued an 'enforcement guidance' explaining how employers could use criminal records without violating the Civil Rights Act;As of 1998, the Equal Employment Opportunity Commission had interpreted the Civil Rights Act to require that, where an employment policy which discriminates against criminals will have a disparate racial impact, employers must show a business necessity before automatically disqualifying criminals.
In April 2012 the EEOC published an enforcement guidance requiring companies to establish procedures to show that they are not using criminal records to discriminate by race or national origin. The EEOC indicated that they were investigating "hundreds of charges related to the use of criminal history in employment". EEOC endorsed removing a conviction question from the job application as a best practice in its 2012 guidance.
Many statutes and regulations prohibit or restrict hiring criminals for many types of jobs, such as law enforcement including correction officers health care or education, the military as well as the Peace Corps and/or forbid licensing boards from granting professional licenses. Boards are often required to consider the applicant's moral character and some are authorized to consider criminal prosecutions which did not result in the applicant's actual conviction of a crime e.g., criminal charges dismissed as a result of deferred adjudication or other diversion program. Professions requiring licensing are increasingly numerous including barbers, locksmiths, electricians, general contractors subcontractors, and other trades and occupations involving work in private residences and businesses; or with vulnerable members of the public; for example daycare workers for children and seniors. Pilots of planes and ships, as well as drivers of passengers and cargo, tow truck drivers, as well as employees with access to airports, and other ports of entry. Emergency Medical Technicians and Paramedics, billiard room employees, attorneys, process servers, Notary Publics, Court Reporters, physicians, pharmacists, nurses, embalmers, septic tank cleaners, realtors, accountants, NASD/FINRA securities brokers, insurance agents, bar owners, and sellers of alcoholic beverages, salvage dealers, pawn shop owners.
Felons
As of 2008, 6.6 to 7.4 percent, or about one in 15 working-age adults were ex-felons. According to an estimate from 2000, there were over 12 million felons in the United States, representing roughly 8% of the working-age population.Theory
The Thirteenth Amendment explicitly makes slavery and involuntary servitude for criminals constitutionally permissible in the United States and its territories. Most Americans erroneously believe the 13th Amendment entirely prohibit the practice. The Fourteenth Amendment to the United States Constitution requires "due process" but further expressly permits loss of life, liberty, and property. Thus felony disenfranchisement as well as misdemeanor disenfranchisement. These provisions are moderated in that punishment can not be "cruel and unusual" which is prohibited by the Eight Amendment and by 18 U.S. Code § 1581 and 42 U.S. Code § 1994 which prohibits peonage. The Constitution, Article 1 Sections 9 and 10, also forbids Bills of Attainder but the U.S. Supreme Court has only construed the provision five times and only after the civil war. Collateral consequences of conviction although widespread and arguably legislation prohibited by Article 1 has thus seen very little substantial litigation. Moreover, there is a large body of case law that these civil statutes and regulations are not penal and thus not subject to the Constitution's Article 1 or Double Jeopardy 5th Amendment prohibitions. The entire constitution, on the subject-matter of criminal convictions, should be read in pari materia.The counter-argument: It has been pointed out that constitutional approval of felons' political powerlessness is not the same as constitutional approval of government prejudice toward the politically powerless. Such prejudice may arguably violate the Equal Protection Clause, which itself contains no exclusionary provision authorizing discrimination against felons. A "discrete and insular" minority subject to prejudice, in particular, may be considered particularly vulnerable to oppression by the majority, and thus a suspect class worthy of protection by the judiciary.
As of 1998, seven states absolutely barred felons from public employment. Other states had more narrow restrictions, for instance, only covering infamous crimes or misdemeanors and felonies involving moral turpitude. Some laws have been criticized for being overinclusive;for instance, a law banning all criminals from working in health care jobs could prevent a person convicted of bribery or shoplifting from sweeping the halls of a hospital. California law provides that a criminal record can affect one's application for a professional license only if "the crime or act is substantially related to the qualifications, functions and duties of the business or profession for which the application is made." Further, a certificate of rehabilitation can prevent a person from being denied a license solely on the basis that he has been convicted of a felony.
Texas Administrative Regulations requires, for some licensing, that a variety of factors, such as the nature and seriousness of the crime, the relationship of the crime to the purposes for requiring a license to engage in the occupation, the amount of time since the person's last criminal activity, and letters of recommendation, be taken into account.
While such discretionary guidelines may exist, prospective licensees are often provided merely a sham process to better legitimize prejudicial licensure denial. For example, Texas allows an appeal from such licensing commission to an Administrative Law Judge but such judge has no authority to overturn the licensure denial. Further, the Texas Supreme Court has held there is no due process or open courts right to appeal from an administrative proceeding. Thus, the licensing commission's abuse of discretion or erroneous application of law is not genuinely subject to meaningful review and correction. Further, the incompletely cited regulations above, are significantly biased in favor of white privilege, including socio-economic factors, e.g., has the applicant been steadily employed, supported his/her dependents, paid all fines, court costs, restitution. Such licensing standards are particularly unfair to minorities due to lower overall rates on employment and higher rates of poverty and family instability. Further, whereas applicants may submit letters of recommendation from anyone, the regulation is expressly preferential if from the prosecutors, the warden, sheriff or police chief where the applicant resides, or the police who made the arrest. In most instances, due to high caseloads of urban courts, and rates of crime in urban areas, as well as the generally lower-socio-economic status of those convicted, most will lack both access to and community standing to garner such criminal justice officials to vouch much less prepare a written recommendation for them to be licensed. It also violates attorney ethics for an attorney to speak directly to the client that is represented by opposing counsel. No less problematic, post-conviction licensing is outside the scope of representation for a court-appointed criminal defense lawyers and public defenders. The U.S. Supreme Court has also ruled except for deportation a defendant's lawyer is not constitutionally required to inform such client about adverse employment and licensing consequences.