Can sex offenders be discriminated against by employers?

Asked about 2 years ago - Beggs, OK

I've seen several attorneys answer this question with a resounding YES so far...but I have a legal point to make after doing some amateur research.

The EEOC has said that employers may discriminate against ex-felons IF "their criminal conduct exclusion is job related and consistent with business necessity". That's the 1st test.

And some cases have been filed by MALE ex-felons resulting in the employer not being able to prove the exclusion was job related or a business necessity. So the question became "Who is being discriminated against since ex-felons aren't a protected class?" And the answer surprisingly was gender, because percentage-wise, men are much more likely to be ex-felons.

So in light of that, couldn't a male sex offender claim gender discrimination on the same grounds?

Additional information

Lawyers, in the future before replying, please reference the EEOC's page:

...where it says in the very first paragraph "There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records. However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way."

Attorney answers (1)

  1. Jonathan Edgar Pollard

    Contributor Level 12


    Lawyer agrees

    Answered . No, that's completely convoluted reasoning. Gender has nothing to do with the employer's actual selection / decision making process. The "discrimination" is based solely on the employee or applicant's status as a sex offender. The fact that most sex offenders happen to be male does not turn this into a gender discrimination matter.

    Let's use some analogies. How about this: The government is always going after athletes who use steroids. Most athletes who use steroids are men. So the government is mostly going after men. Sexist! No. Gender has nothing to do it. They are just after steroid users and most of those just happen to be men.

    You hit the nail on the head yourself: "amateur research" is no substitute for actual knowledge and experience with the law. So yes, discriminating against sex offenders is a legal employment practice.

    My response to this question is a response to a hypothetical situation based on limited facts. I am not your... more

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