Discrimination on the basis of an irrelevant criminal record


There is mounting evidence that in recruitment some criminal background checks are not being used appropriately. This has a real impact on people’s lives.

Karen is an Aboriginal woman in her early 30s. She was raised in a healthy household, she says, where both parents went to work and she started earning a living as soon as she could. “I did a fencing course when I was 16,” she says. “From day dot I always considered myself to be working.”

But for the past decade, every time she’s tried to find a job she’s been rejected once her criminal record has been checked. It started when she was around 18 years old. She had just escaped a violent partner who she’d been with for five years, and she was struggling with drug and alcohol addiction. One day, not long after the abusive relationship ended, she was approached by the police. There were fights happening in her area, which was not uncommon.

“The police got out of the car and came straight for me and lifted me up off the ground,” she says. “I was telling them ‘I’ll walk, let me walk’, but they were just dragging me along

“They knew quite well what I’d been through [as a survivor of domestic violence] – it was a very small community. But these two six-foot police officers still manhandled me. I just blanked out and ended up hitting them.”

That split-second decision is still affecting her life today. “I learnt off that mistake,” she says. “It really frightened me and made me grow up. I pleaded guilty and I paid my dues to them for breaking the law. They put me on an 18-month good behaviour bond.”

“I stopped being that person years ago,” she says. “I thought your past is your past, especially when you’re young and dumb. I’ve got four children now, I’m trying to move forward in life, but I still can’t get work.”

The first job she lost was an aged care role, working with Aboriginal elders. She had been at the organisation for eight months and had been sent to Sydney for training. But then when her criminal record check came back she was let go.

Karen was still determined to serve her community, so she moved to Adelaide to make a new start and pursue a qualification in Aboriginal community and aged care services. “My plan was to complete my aged care training and then go on to become an Aboriginal nurse,” she says.

But after a couple of months she was told she wouldn’t be able to continue the course, because of her police history.

It’s now over a decade since the conviction yet it’s still stopping her from serving her community or living a normal life with her four children.

Earlier in 2017, Karen applied for a job at a women and children’s safe house in a remote community in Victoria where she’d moved with her children. She got a job as an administrative officer, but at the end of her three month probation period she failed a Working with Children Check.

“The organisation was very upset to let me go,” she says. “They wanted to help me clear it up but it was too late. I loved that job.

“I had to seek mental health support after I lost the job that’s how depressed I was. I’ve moved from one town to another, but I’ve never got a new start,” she says.

“It depresses me because I’d like to build something for my children. One of them wants to play in the Australian Football League when he’s older, how am I going to get him there without a job?”

She’s become so disheartened that she’s started ruling herself out of all jobs where there is a police check. Recently, she applied for a Parks Victoria Aboriginal-identified position as a firefighter during the fire season. She got an interview but when they said she’d need to get a criminal record check she ruled herself out.

“I’d like to go to work every day like everyone else,” she says. “I’d like to buy a house or a car. The government wants you to get a job, but when you try it’s the government that stops you. It’s like hitting a brick wall every single time.”

“It’s really difficult to keep going in the direction you want to go in when they slap you in the face with your past all the time. You turn to alcohol. I’ve seen people go completely down the drain.”

(This case study used with permission from Woor Dungin’s Criminal Record Discrimination Project)

The law and international examples

Under federal legislation (the Australian Human Rights Act) people who have been discriminated against on the basis of an irrelevant criminal record may complain to the Human Rights Commission. Under this legislation, employers can only decline to employ someone on the basis of their criminal record if the person’s criminal record “means that he or she is unable to perform the inherent requirements of the job” (see the Human Rights Commission guidelines).

At a state and territory level, the Northern Territory and South Australia are the only jurisdictions that include discrimination on the basis of an irrelevant criminal record in their anti-discrimination legislation.

While legislative protections are undoubtedly important, there is only so much that they can achieve.

The benefits of these employees

Many employers have recognised the value that employment plays in helping people who have been involved in the justice system to get back on their feet. Some have also reported that ex-offenders who are offered a second chance prove to be more loyal and committed employees than those without previous criminal history.

It’s not just the economic benefits of employment, the positive social networks and sense of purpose that comes from meaningful employment can also be powerful factors in supporting people to desist from offending behaviour.

In the UK, large employers such as Boots, Barclays, Linklaters and Virgin Trains have changed their practices in order to ensure that people with criminal records have a fair chance at being hired. Similarly, in the US, companies such as Walmart, Starbucks and Koch Industries have changed their hiring practices. This has included measures such as refraining from asking about an individual’s criminal record until a job offer has been made and limiting the time period in which an offence can be considered.

The US has also seen 32 states and over 150 cities adopt ‘ban the box’ laws that limit when and how employers can ask about an individual’s criminal record, and how they use this information.

What employers can do

It makes sense that employers should conduct background checks in roles that carry a lot of risk or involve contact with vulnerable groups. However, there is mounting evidence that in Australia some of these checks are not being used appropriately to inform employment related decision making (HRM wrote about a controversial case earlier this year). There is also a need to ensure that valid concerns about risk and safety do not prevent individuals putting their past behind them and accessing the benefits of employment.

Red Cross and RMIT University are both interested in understanding and addressing the barriers that Australian employers face in hiring people who have been involved in the justice system.

You can help by completing an anonymous survey on your company’s experience – and sign up to be a part of the design.

If you are interested in learning more or being involved in the project contact Caitlin Calder-Potts at ccalderpotts@redcross.org.au

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13 Comments On "Discrimination on the basis of an irrelevant criminal record"

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Colin Henson

Based on the case study, Karen, would be welcome to apply for a role at Adssi HomeLiving.

Michaela

It is really sad to see someone wanting to really make a good go ina valued industry but an old mistake holding her back.

However, it can’t all be put on the employers as some of these requirements are legislative like the working with children check example here. That employer didn’t want to let her go.

Jane

My daughter too has experienced similar discrimination. She is now studying psychology and has such amazing goals in her life to help others overcome the trauma she experienced in the past. However, here in Perth every job she has been offered has been retracted after the police clearance check. Even recruitment agencies won’t have her on their books because she has a criminal record. She is really struggling to get ahead as she cannot even find part time work.

Tracey
As mentioned by Michaela, some requirements (with regards to criminal history), are legislative and cannot be overridden by an employer. However many are not ‘black and white’ and employers can use discretion when considering the impact a criminal history has on an employment application. The first suggestion I’d have for anyone with a criminal history is to be completely honest with a prospective employer, rather than have them surprised by the results of a police check. It gives candidate the chance to explain the incident, how they’ve changed and how it will/won’t affect their employment. It’s unlikely they’ll get the… Read more »
Marnie

I agree with Tracey and where a candidate has been completely upfront about convictions that did not impact on the inherent requirements of the role, as an organization we admired the honesty in discussing what was a very distressing time in the person’s life. The employment decision was made and that employee went on to be a very valuable addition to the organization.

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Discrimination on the basis of an irrelevant criminal record


There is mounting evidence that in recruitment some criminal background checks are not being used appropriately. This has a real impact on people’s lives.

Karen is an Aboriginal woman in her early 30s. She was raised in a healthy household, she says, where both parents went to work and she started earning a living as soon as she could. “I did a fencing course when I was 16,” she says. “From day dot I always considered myself to be working.”

But for the past decade, every time she’s tried to find a job she’s been rejected once her criminal record has been checked. It started when she was around 18 years old. She had just escaped a violent partner who she’d been with for five years, and she was struggling with drug and alcohol addiction. One day, not long after the abusive relationship ended, she was approached by the police. There were fights happening in her area, which was not uncommon.

“The police got out of the car and came straight for me and lifted me up off the ground,” she says. “I was telling them ‘I’ll walk, let me walk’, but they were just dragging me along

“They knew quite well what I’d been through [as a survivor of domestic violence] – it was a very small community. But these two six-foot police officers still manhandled me. I just blanked out and ended up hitting them.”

That split-second decision is still affecting her life today. “I learnt off that mistake,” she says. “It really frightened me and made me grow up. I pleaded guilty and I paid my dues to them for breaking the law. They put me on an 18-month good behaviour bond.”

“I stopped being that person years ago,” she says. “I thought your past is your past, especially when you’re young and dumb. I’ve got four children now, I’m trying to move forward in life, but I still can’t get work.”

The first job she lost was an aged care role, working with Aboriginal elders. She had been at the organisation for eight months and had been sent to Sydney for training. But then when her criminal record check came back she was let go.

Karen was still determined to serve her community, so she moved to Adelaide to make a new start and pursue a qualification in Aboriginal community and aged care services. “My plan was to complete my aged care training and then go on to become an Aboriginal nurse,” she says.

But after a couple of months she was told she wouldn’t be able to continue the course, because of her police history.

It’s now over a decade since the conviction yet it’s still stopping her from serving her community or living a normal life with her four children.

Earlier in 2017, Karen applied for a job at a women and children’s safe house in a remote community in Victoria where she’d moved with her children. She got a job as an administrative officer, but at the end of her three month probation period she failed a Working with Children Check.

“The organisation was very upset to let me go,” she says. “They wanted to help me clear it up but it was too late. I loved that job.

“I had to seek mental health support after I lost the job that’s how depressed I was. I’ve moved from one town to another, but I’ve never got a new start,” she says.

“It depresses me because I’d like to build something for my children. One of them wants to play in the Australian Football League when he’s older, how am I going to get him there without a job?”

She’s become so disheartened that she’s started ruling herself out of all jobs where there is a police check. Recently, she applied for a Parks Victoria Aboriginal-identified position as a firefighter during the fire season. She got an interview but when they said she’d need to get a criminal record check she ruled herself out.

“I’d like to go to work every day like everyone else,” she says. “I’d like to buy a house or a car. The government wants you to get a job, but when you try it’s the government that stops you. It’s like hitting a brick wall every single time.”

“It’s really difficult to keep going in the direction you want to go in when they slap you in the face with your past all the time. You turn to alcohol. I’ve seen people go completely down the drain.”

(This case study used with permission from Woor Dungin’s Criminal Record Discrimination Project)

The law and international examples

Under federal legislation (the Australian Human Rights Act) people who have been discriminated against on the basis of an irrelevant criminal record may complain to the Human Rights Commission. Under this legislation, employers can only decline to employ someone on the basis of their criminal record if the person’s criminal record “means that he or she is unable to perform the inherent requirements of the job” (see the Human Rights Commission guidelines).

At a state and territory level, the Northern Territory and South Australia are the only jurisdictions that include discrimination on the basis of an irrelevant criminal record in their anti-discrimination legislation.

While legislative protections are undoubtedly important, there is only so much that they can achieve.

The benefits of these employees

Many employers have recognised the value that employment plays in helping people who have been involved in the justice system to get back on their feet. Some have also reported that ex-offenders who are offered a second chance prove to be more loyal and committed employees than those without previous criminal history.

It’s not just the economic benefits of employment, the positive social networks and sense of purpose that comes from meaningful employment can also be powerful factors in supporting people to desist from offending behaviour.

In the UK, large employers such as Boots, Barclays, Linklaters and Virgin Trains have changed their practices in order to ensure that people with criminal records have a fair chance at being hired. Similarly, in the US, companies such as Walmart, Starbucks and Koch Industries have changed their hiring practices. This has included measures such as refraining from asking about an individual’s criminal record until a job offer has been made and limiting the time period in which an offence can be considered.

The US has also seen 32 states and over 150 cities adopt ‘ban the box’ laws that limit when and how employers can ask about an individual’s criminal record, and how they use this information.

What employers can do

It makes sense that employers should conduct background checks in roles that carry a lot of risk or involve contact with vulnerable groups. However, there is mounting evidence that in Australia some of these checks are not being used appropriately to inform employment related decision making (HRM wrote about a controversial case earlier this year). There is also a need to ensure that valid concerns about risk and safety do not prevent individuals putting their past behind them and accessing the benefits of employment.

Red Cross and RMIT University are both interested in understanding and addressing the barriers that Australian employers face in hiring people who have been involved in the justice system.

You can help by completing an anonymous survey on your company’s experience – and sign up to be a part of the design.

If you are interested in learning more or being involved in the project contact Caitlin Calder-Potts at ccalderpotts@redcross.org.au

Leave a reply

13 Comments On "Discrimination on the basis of an irrelevant criminal record"

avatar
  Subscribe to receive comments  
Notify me of
Colin Henson

Based on the case study, Karen, would be welcome to apply for a role at Adssi HomeLiving.

Michaela

It is really sad to see someone wanting to really make a good go ina valued industry but an old mistake holding her back.

However, it can’t all be put on the employers as some of these requirements are legislative like the working with children check example here. That employer didn’t want to let her go.

Jane

My daughter too has experienced similar discrimination. She is now studying psychology and has such amazing goals in her life to help others overcome the trauma she experienced in the past. However, here in Perth every job she has been offered has been retracted after the police clearance check. Even recruitment agencies won’t have her on their books because she has a criminal record. She is really struggling to get ahead as she cannot even find part time work.

Tracey
As mentioned by Michaela, some requirements (with regards to criminal history), are legislative and cannot be overridden by an employer. However many are not ‘black and white’ and employers can use discretion when considering the impact a criminal history has on an employment application. The first suggestion I’d have for anyone with a criminal history is to be completely honest with a prospective employer, rather than have them surprised by the results of a police check. It gives candidate the chance to explain the incident, how they’ve changed and how it will/won’t affect their employment. It’s unlikely they’ll get the… Read more »
Marnie

I agree with Tracey and where a candidate has been completely upfront about convictions that did not impact on the inherent requirements of the role, as an organization we admired the honesty in discussing what was a very distressing time in the person’s life. The employment decision was made and that employee went on to be a very valuable addition to the organization.

1 2 3
More on HRM