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.
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