Fighting Criminal Conviction Discrimination in the Workplace

Author: Mesriani Law Group
Posted on: December 11, 2018

The lack of opportunities for particular members of society persists to this day despite the numerous reforms that were made to create equal opportunities for people from all walk of life. Although California, for example, shows excellent progress in economic growth, it still lacks a good rating regarding equality.

recent report shows that California ranks as one of the highest among the states to have income inequality. This means that people from the higher strata have significantly higher wages compared to those below them, making for an uneven distribution of income within a population. California’s affluent residents remain in their financial towers while the middle-class and impoverished citizens have to be content with little compensation.

The concentration of wealth within a small population perpetuates the vicious cycle of poverty. Employment discrimination causes and is heavily affected by this cycle of poverty, which banks on the notion that a specific group of people are inept and therefore unemployable based on superficial metrics. Criminal conviction discrimination in the workplace, in particular, targets people who were found guilty of a crime, hindering them from functioning as contributing citizens of the state. Without alleviating the situation, one out three American adults may find themselves stuck in a rut their entire lives due to having criminal records, making it impossible for them to find stable jobs.

It is a common tactic for employers to ask their applicants if they have been convicted of a crime to filter out ex-convicts from their pool of possible employees. Today, the “ban-the-box” law, one of the many employment discrimination laws, acts as a safeguard against unjust employment decisions by prohibiting companies from asking about the criminal history of their applicants.

What Is a Criminal Conviction?

When it comes to fighting against criminal conviction discrimination, it is important to differentiate between three often-interchanged terms: arrest, criminal charge, and criminal conviction. Not all criminal records carry the same weight, but having any kind of it in one’s background is detrimental to job applications.

A criminal record is a documented history of a person’s past crime involvements. It includes arrests, which is when a person is taken into police custody to be detained. Arrests are usually made when police officers gather enough evidence to believe that a person has committed an offense, thus prompting them to take that individual in for questioning or indefinite hold. Being arrested, however, does not point to being guilty of a crime, but rather serves only as a part of a legal procedure to push a case forward.

Criminal charges may also be cited after undergoing a background check, but much like arrests, they do not point to one’s guilt. Simply put, it is a formal accusation that demands proof from a prosecuting party. This often leads to a preliminary hearing which may or may not be followed by a court trial, depending on the amount and quality of evidence the prosecutor has against the defendant.

Finally, a criminal conviction is the result of such trial, ultimately concluding that the person is guilty as charged of the offense. If a trial ensues and the prosecutor cannot prove that one is guilty beyond reasonable doubt, a criminal conviction will not be warranted, and the accused will be acquitted of the crime. Unfortunately, details regarding one’s guilt or innocence don’t always show up in background checks, and employers regularly base off of this incomplete information during the hiring process.

Rebuilding Life After a Conviction

Social reintegration of ex-offenders is plagued by problems that promote a flawed and biased system. People who have served time are relentlessly haunted by stigma and discrimination, making it harder for them to better their lives and make them return to crime.

1. Psychological Distress

Ex-convicts suffer a great deal of psychological distress brought about by internal and external factors. Negative public attitude towards ex-offenders makes it harder for them to reintegrate into society. Such negative views also affect one’s self-esteem and push an individual to feel nothing else but shame and regret.

2. A Criminal Record and Employment Discrimination

Employment after a criminal conviction is a remarkable achievement moving forward as it provides a means of bettering one’s life, and instills a sense of accomplishment. However, having a criminal record limits one’s options when finding a job since ex-convicts are not desirable employees due to the negative stigma associated with them.

3. Recidivism

It is not unusual for ex-offenders to feel as though they are only defined by their criminal record. Ex-offenders typically return to a life of crime out of desperation to sustain their needs due to the difficulties in reintegrating in a society that offers them with almost no opportunities and still treats them as criminals.

Ban-the-box Law

Implemented on January 1, 2018, the California Fair Chance Act (AB 1008) aims to increase the chances of ex-convicts to get employed. The law urges employers to assess an applicant’s credentials first rather than turning him or her down immediately due to having a criminal past. This is done by removing a leading question in job application checklists that inquire about one’s criminal records, hence becoming known as the “ban-the-box” law. In California, it specifically stipulates that no inquiry of one’s background may be carried out until a conditional employment offer is made.

In cases where a criminal offense is found during an applicant’s background check, an employer is not allowed to abruptly retract an offer without first considering the severity of the crime, its relevance to the job position, and the amount of time that has passed since the offense. Should an employer retract the job offer, they must provide a detailed written notice along with the conviction history report their decision was based on. At least five business days must be given to the applicant to respond to the report. Additionally, the employer is responsible for letting the applicants know that they can file a complaint with the Department of Fair Employment and Housing.

Know How to Fight Criminal Conviction Discrimination

Despite the safeguarding prohibitions the law presents, it is essential to do your part in fighting against criminal conviction discrimination in the workplace.

1. Answer Interview Questions Thoughtfully

Some employers may find loopholes in the law and probe about your history in discreet ways. Before answering any questions, think about your responses carefully and assess whether or not you are being led to answer questions you shouldn’t.

2. Be Aware That They Need Your Consent

If your employer did a background check on you using a third party, ask yourself if they obtained your consent to do so. This is in compliance with the Fair Credit Reporting Act (FCRA) which states that they need your written consent before proceeding with investigations.

3. Verify the Accuracy of Your Background Records

Double-check your records to make sure there is no inconsistent information on your sheet. Know that you have the right to file a case against the screening company if they gave a false report to your employer.

4. Report Discrimination Cases

Don’t stay silent. Voice out your concern to the right authorities.

Strengthen Your Case With Legal Counsel

Experiencing employment discrimination is a disconcerting ordeal and should not to be taken lightly. It affects an individual’s mental health tremendously, as well as prevents one’s ability to become a productive member of society again after a conviction.

Although the suggestions mentioned above can help close the gap and give everyone equal opportunities through your own will, it is best to make sure that your complaint is handled properly to have the best possible outcome. With Mesriani Law Group, you can lay your burdens to rest knowing that you will get the proper legal assistance from an experienced lawyer who specializes in employment discrimination cases.