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Can sex offenders be discriminated against by employers?

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?

Lawyers, in the future before replying, please reference the EEOC's page: http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm ...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

Posted

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 attorney; you are not my client and we do not have an attorney-client relationship. If you need a lawyer, you should contact one in your area. If you would like to talk with me about your case, you can call my office.

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3 comments

Asker

Posted

Please read Green v. Missouri Pacific Railroad Company and tell me how you think that's any different. Also, you might look at the EEOC's page: http://www.eeoc.gov/laws/practices/inquiries_arrest_conviction.cfm Read the first paragraph and tell me what you think it really says.

Jonathan Edgar Pollard

Jonathan Edgar Pollard

Posted

The first paragraph from the EEOC's website clearly states that there is no federal law against using past convictions in hiring decisions. There is a huge difference between (1) the EEOC making a comment about what it thinks is fair vs (2) the actual law. With respect to the Green case, you do not understand the law. Sorry, but I answered your question. You just don't like the answer.

Asker

Posted

But the EEOC is saying FLAT OUT exclusion of ALL ex-felons without a legitmate business reason violates existing law. My argument is that if that is true then flat out exclusion of all sex offenders could be considered illegal for the same reason. How was the Green case fundamentally different?

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