Using Arrests and Convictions as Front in Employment Discrimination

Discrimination in the workplace remains to be a major problem that the US Equal Employment Opportunity Commission (EEOC) faces every year. Despite all the laws that aim to protect the rights of employees and promote equal opportunities in all aspects of employment, EEOC continues to receive close to a hundred thousand discrimination charges every year (99,412 for the year 2012 and 93,727 for 2013).

Since it was formed by the US Congress in 1964, EEOC has never wavered in its commitment in strictly enforcing the mandates of Title VII of the Civil Rights Act (passed in 1964 also) which is centered on the prohibition of all acts of discrimination in the workplace, be it in the hiring or firing of employees, transfer or recall back to work, promotion, apprenticeship programs, job training, wages, fringe benefits, and so forth, regardless of basis – national origin, religion, sex, race or color.

Often, however, the real basis of discrimination is obscured by a factor that is not directly protected under Title VII of the Civil Rights Act of 1964 – Arrests and Convictions – and, unless a clear link can be established that one’s arrest and conviction is really just a front to employment discrimination based on race, national origin, etc., then an employer cannot be charged with violation of the Civil Rights Act’s mandates.

Information regarding a job applicant’s or an employee’s possibility of having been arrested or convicted in the past has become one of the details required by employers in hiring an applicant or retaining the services of an employee. Some employers even choose to conduct a background check to see if an arrest and criminal record exist under an applicant’s or employee’s name and then use this (as front) in rejecting or dismissing an individual.

A survey conducted by the EEOC on employers revealed that almost all employers now subject all or a few of job applicants to criminal background checks. This move is aimed at eliminating any possibility of theft, fraud, workplace violence and negligent hiring (in the event that a person with a criminal record is hired and causes injury on someone). A person’s arrest and criminal record can be accessed for background checks from different sources which include: Court Records; Law Enforcement and Corrections Agency Records; Registries or Watch Lists (which are maintained by a number of government entities); State Criminal Record Repositories; and, the Federal Bureau of Investigation’s Interstate Identification Index (III), which is the most comprehensive collection of criminal records in the US.

Though an arrest or a criminal record is not included in the list of the protected bases of workplace discrimination (race, color, religion, sex, or national origin), EEOC makes it clear that it will hold employers legally liable for prohibiting the stipulations of Title VII if the use of this is proven as only concealing a violation of any of the anti-discrimination laws.

Cary Kane Legal explains on its website that other than the Port Authority, the federal government and the law enforcement agencies, no other employer can ask applicants about the possibility of their having been arrested or convicted in the past. If a person does have a record and feels that it has been used but only as a front to hide the real reason why he/she had been discriminated upon, then seeking the help of a dependable Labor and Employment lawyer will definitely be necessary.

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