DISCRIMINATION IN EMPLOYMENT ON THE
BASIS OF CRIMINAL RECORD

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Submission No. 40 - Dr Tony Webb, Research Fellow with the Centre for Popular Education, University of Technology, Sydney (UTS)

February 2005

HREOC inquiry re Discrimination in Employment on the basis of Criminal Record

The Centre for Popular Education at UTS has convened a series of forums on Prison and Post-release Education through late 2003 and 2004. These have engaged stakeholders from: statutory agencies, voluntary community agencies, ex-prisoners and academic researchers in conversations about the problems faced by people caught up in the criminal justice system. They have also explored what is being done and what is needed to overcome the evident failure of the criminal justice system to reduce the 50-60% re-offending and re-incarceration rates across the country.

'Barriers to employment' following imprisonment has been one of the issues discussed. It is evident from the stories of men and women who have been through the system that ex-prisoners encounter significant barriers to employment post-release among which is the perception that pre-employment requirements to disclose any conviction however old or however irrelevant to the requirements of the job is either: an automatic barrier to them being employed; or something that may come back to haunt them (be grounds for instant dismissal) if they obtain the job without disclosing this criminal record.

This brief outline submission to HREOC suggests that the issue might usefully be framed in terms of a series of questions:

1. Does the increasing use by employers of pre-employment questions re criminal record and demands for permission to conduct police checks amount to an erosion of the human rights of ex-offenders?

We do not accept discrimination on the basis of race/ethnicity, age, gender or sexual preference. The criteria for employment are expected to be relevant to the applicant's ability to do the job. We suggest that a similar principle needs to be established regarding the use of criminal record checks (whether by asking for voluntary disclosure or by police checks) in employment screening. The person who has completed whatever sentence imposed by society for their offence has, we suggest, the absolute right to expect to be allowed to reintegrate into society - unless there are compelling grounds under which the employer can justifiably argue that the criminal record is a relevant criterion - needed to assess the person's ability to do the job.

Establishing this as a human rights principle (albeit with scope for modifications that we discuss below) would, of itself, make a significant contribution to the process of reintegration. We do not suggest that doing this is simple and easy - any more than the culture change by which we have achieved partial acceptance in other areas of discrimination. However, we see it as the task of HREOC to provide leadership in this area - particularly needed in the current 'law and order' climate that runs the risk of eroding what few rights we give to people caught up in the justice system.

2. Do particular employers or particular jobs have a reasonable and justifiable need to know about a persons prior criminal record as part of the necessary process of assessing their suitability for employment?

These caveats in terms of relevant/justified need to know are the reality against which the in-principle human right above will need to be modified. Some jobs may reasonably require that all convictions be subject to disclosure requirements. The obvious case here is for employment in parts of the criminal justice system - police, corrections, law, and arguably the growing field of private security. Other jobs may reasonably require disclosure of some offences where the individual is applying for work in specialist areas. Examples would be predatory sexual offences w.r.t. work with children; some fraud offences w.r.t. jobs where responsibility for managing finances is required etc.

In many cases however, what is reasonable justifiable and necessary will be contested - particularly in the present hostile 'law-and-order' climate. We have thus a grey area where what is acceptable will have to be established over time - hence the need for the over-arching human rights principle above.

We suggest that as part of this inquiry the HREOC develop options lists as the basis for community discussion on what is might be seen as reasonable by the community in terms of genuine need to know - and that, over time, employers be advised on what is and is not reasonable to ask in pre-employment screening processes. Use of inappropriate measures would then be open to a complaint of discrimination.

3. In those circumstances where it is reasonable for the employer to seek information, what are the reasonable expectations of the prospective employee regarding the safeguarding of his or her rights w.r.t. the use of this information?

The first is the right to know whether disclosure of this or that offence is or is not an absolute barrier to employment. If a criminal offence (either a specific offence or any offence) is such a barrier, the prospective employee can avoid the humiliation of rejection knowing that there was no point in applying for that job.

In the example above people with a record of some sexual offences we already make it clear that for some to apply for work in some areas is an offence. There are other examples where the employer has reasonably decided that a person with this or that record will not be employed in the position and it is therefore reasonable (and helpful to the reintegration of the offender) to make this clear early in the application process.

However many jobs will fall into the grey zone referred to above. The employer may have established a reasonable and justifiable need to know - but this may not of itself preclude employment. The prospective employee with a criminal record has an equally reasonable need to know this - and have this spelt out explicitly alongside any request for disclosure. We suggest that consideration be given to requiring employers to provide a clear statement alongside the question about criminal record so that the prospective employee is encouraged to apply knowing that, while this may be taken into account it will not necessarily prevent him or her being employed. It will also then allow him or her to question and indeed, if dealt with unreasonably, challenge the decision of the employer to refuse employment on the grounds of a previous conviction where circumstances suggest that this should not be used as a barrier to employment.

Again over time it should be possible to establish guidelines for employers on what the community regards as reasonable and acceptable here. The HREOC, as part of this inquiry could go a long way to stimulating the community discussion on this.

The other major concern of many ex-prisoners about disclosure is the effect of having someone - often more than one person in the enterprise - who will know details of his or her offence. In return for disclosure the prospective employee has, we believe, the absolute and inalienable right to confidentiality - that this information will not be shared with others except on the basis as above of reasonable justified need to know. We suggest that the HREOC inquiry give consideration to what reasonable procedures are needed within employing organisations to prevent breaches of confidentiality. We also suggest the inquiry canvass the sanctions (up to and including making breach of this confidentiality a criminal offence) that may be needed to ensure that this human right is given appropriate consideration by employers and those with responsibility for employment screening within the organisation.

4. At what time can an ex-offender reasonably expect that the community accept his full and complete reintegration?

One of the most obvious factors in deciding whether a past offence is relevant to present employment is the period of time that has elapsed. Should an offence committed 30 years ago be considered relevant - however serious it might have been at the time - if there has been no further offence in the intervening years? Are we willing to extend this to the case where there may have been some other minor offence but no repetition of the relevant offence?

Unlike some other countries where people are given the right to say 'no' to questions inquiring about previous offences after a lapse of some years, this does not seem to apply in Australia.

We suggest that within the framework of principles and progressive negotiation of what are reasonable expectations that guide the application of the practice of pre-employment screening, the HREOC develop proposals for a system where prior convictions are 'pressed' after a period of time has elapsed. In these circumstances the ex-offender is given the right to answer 'no' to questions inquiring about a criminal record. And as outlined above 'reasonable' permitted police checks into criminal record will similarly be answered 'no/none' by the police unless there is again a reasonable and justifiable need to the employer to know. We suggest that this elapsed period should not be more than 5-7 years - and that periods of supervision on parole in the community (i.e. time from incarceration) be included in this. We see this as a human rights issue - where the ex-offender has a right to expect that the combination of retribution (punishment) and controlled rehabilitation/reintegration (espoused as principles of the criminal justice system) have some finality. We see this as particularly important to achieve this as, at present, for many ex-offenders any conviction is seen as an ongoing (sometimes permanent/insurmountable) barrier to employment.

5. What special needs - and hence human right to special services - are created as a result of conviction and particularly incarceration?

This is a large topic - one that is being addressed by a number of other agencies in submissions to this HREOC inquiry. For example one of the stakeholders in our Forums alludes to the realities of Prison culture in terms of features of: institutionalisation; brutalisation (including sexual assault) and the breakdown of those very aspects of personality needed for reintegration into the community. So long as we accept this carceral system for dealing with criminal behaviour - and extend the sentence beyond that laid down by the courts in terms of entrenched barriers to full reintegration into the community via employment - so we then also need to see the absence of specialist services that assist people to negotiate their way through these barriers as part of the process of discrimination.

The position we have taken at the Centre for popular Education is that, alongside the statutory and voluntary community services in this area (and the emerging 'through-care' policies and practices), there is a vital need to engage the ex-offender and particularly the ex-prisoner in providing new and more appropriate services for others similarly disadvantaged - This will involve ex-prisoners developing appropriate programs for their peers and those (often younger) at risk of following a similar path.

Ex-prisoner mentoring programs (run by ex-prisoners) and similar initiatives which engage prisoners, ex-prisoners and their families in defining and responding to these needs if not merely a sensible approach to meeting what seem to be intractable problems, they also provide scope for dealing directly with the employment needs of ex-offenders. It may fairly be said that only the ex-prisoner fully understands (at least some of the major elements of) the culture of this section of the community. And, as such, is well placed (if not best placed) to understand its needs and what is necessary to overcome the entrenched barriers. Our experience is that many ex-prisoners welcome such an 'invitation to responsibility' and rise to the challenge. Such an approach provides the basis for a new zone of employment for people with first-hand experience of some of the problems created by the criminal justice system - where they can use their skills for the benefit of the community and in the process begin to change the community stereotypes as they are applied to community members with a criminal record.

To some extent we now accept that the recovered addict has a significant role to play in supporting the recovery of other addicts. Indeed, recognition of their skills means that many can now often gain employment in alcohol and drug recovery services. A similar shift in attitude is now needed that recognises the unique skills of ex-offenders and creates jobs that utilise these skills in support services for others at risk of offending or re-offending as a result of discrimination and other barriers in employment, housing education and community services.

We will be happy to elaborate on these points at a later stage in the HREOC inquiry process if this is helpful.

DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD