DISCRIMINATION IN EMPLOYMENT ON THE BASIS OF CRIMINAL RECORD
South Africans who have a criminal record are most likely to face significant barriers in their reintegration and full participation in the society. NICRO has found that securing full time employment is one of the greatest difficulties for former offenders. There is a serious lack of empirical evidence on recidivism in SA, but estimates have been made of between 66-95% return to prison (McAree, T. 2011; Schoeman -2003 in Van Wyk 2014:15). Employment is a key factor in the reintegration or offenders and a resource for turning the lives of ex-offenders, their families and society around, YET it is the most elusive! Harsh and punitive attitudes of society can be a key factor. Shut off from legitimate job opportunities, former offenders may resort to illegal ways to survive. A stable family life can provide an ex-offender with the support and encouragement to stay crime-free, but relations with family members are often strained due to former offenders not being able to bring in income.
On the 17th March 2017, in commemoration of Human Rights month, NICRO partnered with the Western Cape Government -Department of Labour to host a seminar entitled “ Equal opportunity for work-seekers at risk,” looking particularly at discrimination in employment for those work-seekers with a criminal record. The purpose of the session was to promote Public Employment services in terms of the fair selection and recruitment practices within the realm of equal opportunities; to ascertain some of the practical difficulties faced by employers and employees when a person with a criminal record seeks to participate in the workplace, and to seek the views and ideas of all stakeholders as to what needs to be done to eliminate instances of discrimination and increase the intake of former offenders.
The source document upon which the discussion centred was on information drawn from the United Nations, Human Rights and Equal Opportunity Discussion paper, December, 2004, on, “Discrimination in employment on the basis of a criminal record.” There had been a significant number of complaints to the Human Rights and Equal Opportunity Commission in recent years from people with a criminal record alleging discrimination in employment. The complaints also indicated that there is a great deal of misunderstanding by employers and employees as to what amounts to discrimination on the basis of criminal record.
The principle of non-discrimination is all about removing stereotypes and allowing individuals to participate fully in society on the basis of their individual merits rather than be judged by the characteristics that are attributed to them through generalizations. It is about ensuring that they have the same opportunities as others to participate in society. In South Africa, employment practices appear to show a standard blanket criminal record prohibition in employment. A person may apply for a job, but as soon as they declare they have a criminal record, they are likely to be automatically disqualified from proceeding with the application.
According to the UN document, like many other areas of discrimination, the issue of discrimination on the basis of criminal record involves a careful balancing of rights. On the one hand former offender have served their time and paid their debt to society. They have the same right to seek employment as any other member of the community. On the other hand, there may be certain circumstances where a person with a particular criminal record poses an unacceptably high risk if he or she is employed in a particular position. The UN Commission’s position is clear that in order to determine whether it is appropriate to exclude people with criminal records from certain areas of employment, the inherent requirements of a particular job must be identified and there must be careful consideration about whether a particular persons criminal record would disqualify him or her from properly meeting these requirements. NICRO is keen to form partnerships to address this issue.