Article

Discrimination on the basis of a criminal record in South Africa

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Abstract

Section 9(3) of the South African constitution prohibits unfair direct or indirect discrimination on grounds, including ‘race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth’. The Constitutional Court has interpreted section 9(3) to include analogous grounds such as marital status, citizenship and HIV status. There are many pieces of legislation or regulations in South Africa that prohibit employers from employing people with criminal records – irrespective of the lack of a nexus between the criminal record and the job in question. Invoking the test developed by the Constitutional Court on what criteria that should be met for an analogous ground, we argue that denying a person a job simply because of his criminal record amounts to unfair discrimination. We also discuss the issue of whether such discrimination could be justified on the basis of section 36 of the constitution.

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... With respect to both ex-offender and employer attitudes, in a British study (National Association for the Care and Resettlement of Offenders, 1998), it was found that 42% of 200 ex-offenders identified their criminal record as the main reason for being unsuccessful at the job interview stage (Western et al., 2001); and in Europe as well, employer discrimination was found to be the main barrier to hiring ex-offenders (Human Rights and Equal Opportunity Commission, 2004;Jay, 2013;Scott, 2010). African citizens with a criminal record is unknown, yet estimated to be around millions (Mujuzi, 2014;Mujuzi & Tsweledi, 2014), confirm the view that a considerable number of ex-offenders continue to be affected by their criminal record. ...
... The chapter thoroughly analyses, among other documents, the government"s Z83 vacancy application form, which was specifically selected for its relevance, as well as on the basis that it demands an explicit declaration of past misdemeanours. Since a criminal record reinforces the stereotype that ex-offenders are "undeserving" job candidates, disclosure of such a record is often accompanied by risks of being excluded/eliminated during the shortlisting period (Frana, 2010;Mujuzi & Tsweledi, 2014). ...
... Although quite a number of scholars have published on the subject of criminal records in South Africa (Mujuzi, 2014;Mujuzi & Tsweledi, 2014;Rust, 2017); the literature also shows that there is a dearth of policy analysis in as far as access to HE is concerned for students with a criminal record (Mugume, 2017;Slabbert & Bomme, 2014). Bowen (2009) However, in the context of this study, it is necessary to highlight the difference between the use of documents as part of the data-collection strategy and the literature review of a study. ...
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Situated in the qualitative paradigm, this study incorporated the Social Identity Theory (SIT) to explore the lived experiences of six ex-life-imprisonment offenders (ex-lifers) as they navigated South Africa’s labour market in search of employment. To arrive at a balanced view, the study incorporated the views, perceptions and experiences of a human resource manager, a representative from the Department of Correctional Services and various gatekeepers to the Law, Education, Social Work and Psychology professions as the study’s primary sources of data. This framework served to guide the study’s design achieved through social constructionism while adopting a phenomenological stance, intertwined with a policy document analysis methodology.
... In contrast, literature in African countries has thus far remained for the most part silent on the effects of criminal background checks on hiring decisions. However, some evidence exists suggesting that formerly incarcerated people, in particular, are discriminated against in securing legal employment due to their status Dako-Gyeke and Baffour, 2016;Mujuzi and Tsweledi, 2014;Wiafe, 2021). Mujuzi (2014) indicated that some constitutional provisions in South Africa impose limitations on individuals with criminal records to hold positions in the security sector or become financial advisors and disqualify those with traffic offence records from applying for or renewing their professional driver's licence. ...
... In the Southwestern African region, little to no scholarly literature has been produced to date on the topic of collateral consequences of criminal records and the impact of background checks on the employment of formerly incarcerated individuals. The few studies on collateral consequences and criminal record-keeping that are present are conducted in countries in the South-eastern coast of Africa, such as Zambia, South Africa and Mauritius (Dewah and Mutula, 2016;Mugume, 2017;Mujuzi, 2014Mujuzi, , 2015Mujuzi and Tsweledi, 2014;van Zyl Smit, 2003). In Ghana, a few recent studies have reported the endemic stigmatisation by 'law-abiding citizens' against formerly incarcerated individuals and the challenges in their securing legal employment after release (Baffour, 2021;Baffour et al., 2021;Dako-Gyeke and Baffour, 2016;Schneider and Weber, 2020;Wiafe, 2021). ...
Article
This article contributes to the discussion on criminal record-keeping and post-prison employment from the perspective of a developing country. We present and discuss the results of a qualitative research based on interviews with 13 employers in Ghana about the use of criminal background checks in the hiring process. Data suggest a perceived lack of trust towards formerly incarcerated individuals primarily rooted in traditional cultural and moral values. Participants perceived that being associated with people with a criminal record is largely disapproved at the societal level. As a result, formerly incarcerated individuals are discriminated against in the employment setting. We also found that community dynamics and relations manage to overcome the lack of accuracy and reliability of state-provided criminal history information. Due to the absence of reliable access to criminal records through official channels, employers resort to informal means relying on community ties to get access to information about the past and character of job applicants. We conclude by discussing the implications of our findings for research, policy and practice.
... Furthermore, it seeks to provide confidence in specific academic programmes by guaranteeing that students will fulfil licensing criteria upon completing their studies. However, social reintegration studies posit that the practice of using criminal record checks culminates into unwarranted record-based discrimination (Love & Schlussel, 2019;Mujuzi & Tsweledi, 2014),). For example, research emanating from Australia suggests that having a criminal record is rated the fourth highest of five disadvantageous conditions, indicating that people with a criminal record are perceived as less likely to obtain and maintain employment than people in other disadvantageous conditions (Graffam et al., 2008). ...
Article
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Although significant research has already been conducted on the intricacies of the criminal record in South Africa and internationally, literature points to a disjuncture between research and policy, especially around topics relating to access to higher education (HE) and admission to professional registration councils by formerly incarcerated students (FIS) with a criminal record. This qualitative case study incorporated a discourse analysis approach to determine the tone of 23 policy documents. In addition, twelve participants were purposefully sampled to share their lived experiences regarding the regulation and reintegration of FIS when applying for admission to HE and professional registration councils and potential employment upon completion of their studies. The findings indicate that the construction of legal documents and application forms allows higher education institutions and professional registration councils to access students' personal data, such as their criminal records. This leads to implementing measures that exclude certain individuals, which in turn obstructs the effective social reintegration of formerly incarcerated individuals into the workforce. The study recommends the implementation of a South African research-based HE policy aimed at addressing the systemic injustices that regulate the simultaneous admission and rejection of FIS when applying to access HE and admission to professional registration councils. Keywords: higher education, professional registration councils, criminal record checks, offender reintegration, South Africa.
Article
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Research shows that education is an important resource in lowering recidivism and increasing life opportunities for previously incarcerated individuals. Therefore, access to higher education is essential for re-integration into communities. This article explores the mechanisms that South African universities have in place to encourage access for students with criminal records. This is done by analysing the application forms of 16 South African universities to assess whether these institutions require potential students to provide information about their criminal records, any reasons provided for requiring such information, and any indication of how the information is stored, accessed and shared. The findings reveal that some institutions require such information but that there is a lack of clarity at most institutions on the reasons for requesting such information. Evidence from those institutions which require such information shows the importance of the process in order to be able to provide correct advice to students when choosing programmes. Further, also being aware of student challenges means that the correct assistance can be availed for the student to adapt to university life. A re-evaluation of institutional policies to improve access for students with criminal records is proposed, and a research agenda is provided to inform such changes. It is acknowledged that these findings are limited by relying on the application forms of only16 South African universities as the sole source of data.
Article
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The ‘single’ Equality Act 2010 was intended to unify and simplify British discrimination law which had grown-up piecemeal over 40 years. However, a number of protections did not follow the standard model (as originally laid down in the Sex Discrimination Act 1975) and remained outside the unification process. Such grounds include trade union membership and the possession of whistle-blower status and past criminal records. This difference has been significant in the government’s reaction to the European Court of Human Rights’ decision in Redfearn v. UK regarding membership of political parties, where the government opted to expand these ‘other’ protections rather than amend the Equality Act 2010. This article considers the role and status of these other discriminations which remain outside the Equality Act 2010 in light of the government’s response to Redfearn.
Chapter
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Introduction The research that underpins this chapter was originally conducted for two European Commission funded projects to provide baseline data for all EU jurisdictions and is thus broadly descriptive of law and policy. The research sought views on the proposals for a European Criminal Record (ECR) from key agencies and organisations. This has been supplemented by consideration of the House of Commons European Scrutiny Committee’s first, twenty-first and twenty-eighth reports and the minutes of evidence from the House of Lords Select Committee on European Union and its twenty-third report, all of which examined this issue. This chapter considers the existing legal framework for criminal records and any amendments that would be required to accommodate some of the proposals made in respect of the ECR. It addresses the content of domestic criminal records and policy views on the appropriate content of an ECR. It considers those categories of people who are permitted to access domestic criminal records and the policy debates in respect of the ECR, as well as the use to which criminal records may be put both domestically and across Europe. Finally it evaluates that debate on the proposed ECR from the England and Wales’ perspective. The existing legal framework In England and Wales criminal convictions are recorded at both a national and local level. © Cambridge University Press 2008 and Cambridge University Press, 2009.
Article
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The evidence suggests that employers discriminate against ex-offenders in the labour market. The problem is potentially serious as it involves a substantial proportion of the population, especially the male population. Since research has shown that most people with prior convictions stop offending by their late 20s or early 30s, the validity of selection based on criminal record remains questionable. This paper examines the need for legal protection of ex-offenders by limiting employers'' access to, and use of, information on criminal background. The rights and interests of the various parties involved, employers, ex-offenders, and the general public, are discussed. Approaches to the legal protection of ex-offenders in Australia are reviewed and legislative changes proposed.
Article
The exact number of people with criminal records in South Africa is unknown. However, it is estimated that the figure is over one million people. South Africa has a law in place governing the expungement of some criminal records. However, this law leaves some issues relevant to the expungement of criminal records unresolved. The purposes of this article are: to highlight the obstacles that a person with a criminal record faces in South African law; to highlight the drafting history of the law on the expungement of criminal records in South Africa; to highlight the circumstances in which criminal records are stored, used, and expunged; to highlight the loopholes in the law relating to the expungement of criminal records; and to make recommendations on how the law on expungement of criminal records could be amended to address some of the issues it does not address.
Article
This paper focuses on barriers to ex-offender employment and the potential impact of ‘ban the box’ policies that restrict employers' access to criminal history records. We argue policies aimed at creating closed records systems may inadvertently cause statistical discrimination because employers become prone to discriminate against applicants with observable demographic characteristics, such as race, similar to those of ex-offenders. Such policies may lead to adverse selection because applicants willing to accept low wages are often more likely to be those with lower productivity. Because higher productivity workers seek labor markets where they can distinguish themselves, employers have no choice but to hire lower productivity workers. We use the premises of Akerlof's theory of asymmetric information (Akerlof 1970) to suggest a theoretical framework for future studies on the effectiveness of open versus closed records policies. Finally, we focus on alternatives to closed records policies designed to eliminate the marginalization of potentially qualified workers in labor markets.
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Individuals convicted of crimes are often subject to numerous restrictions — on housing, employment, the vote, public assistance, and other goods — well after they have completed their sentences, and in some cases permanently. The question of whether — and if so, when — ex-offender restrictions are morally permissible has received surprisingly little philosophical scrutiny. This article first examines the significance of completing punishment, of paying one's debt to society, and contends that when offenders' debts are paid, they should be restored to full standing as citizens. Thus all ex-offender restrictions are presumptively unjustified. Nonconsequentialist defences of these restrictions are ultimately unsuccessful in defeating the presumption against them. In a limited range of cases, consequentialist considerations — namely, of risk reduction — may be sufficient to override the presumptive case against these restrictions. The article concludes by suggesting a number of criteria for assessing whether particular restrictive measures are permissible on grounds of risk reduction.
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Nonviolent adult repeat offenders between the ages of 18 and 35 face nearly insurmountable obstacles to successful reintegration into dominant culture. Upon release from prison ex-offenders receive an average of 69fromtheirstatedepartmentofcorrections,orbetween69 from their state department of corrections, or between 100-$500 from the Federal Bureau of Prisons to aid their transition back into their communities. As many of them search for legitimate work opportunities, they must deal with the stigma attached to a criminal record and legally enforced employment restrictions barring them from working in several occupations. In addition, most states and the federal government prohibit ex-offenders from accessing public aid funds or financial assistance for school. Finally, many released inmates find they are forced to live in isolated, impoverished communities where there are few job opportunities. In this essay, we analyze secondary data on recidivism and employability for ex-offenders. A review of the literature and history on ex-offender vocational guidance and placement programs documents contrasting views regarding their success and failures, and the reasons for recidivism. We conclude by arguing that sustainable employment is critical to the success of a supervision program, and an ex-offender's avoidance of recidivism. Therefore, resourceful vocational guidance and assistance programs that include financial assistance and follow-up services are more effective than incarceration for some offenders in deterring perpetual recidivism.
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UK policy makers have increasingly sought to improve the employment prospects of offenders to help reduce re-offending. Yet the past 40 years have witnessed profound changes in the nature of work. This article examines how offenders have been affected by economic transformation and the possible implications for re-offending. The author finds that the possession of a criminal record was a minor inconvenience to finding work in the industrial labour market of the 1960s. However, deindustrialisation and the growing service intensity of the economy have relegated many to the margins of the labour market with potentially profound implications for re-offending.
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Policy makers are increasingly recognizing the importance of helping ex-offenders into employment. This article outlines the disadvantages faced by those with a criminal record in the labour market and evaluates several approaches to meeting the needs of ex-offenders seeking work. It finds that, despite recent policy developments, the changing nature of British public administration is undermining the ability of practitioners to respond appropriately to the needs of ex-offenders. The article concludes that the real concern of policy makers is to show that they are doing something about the social context of criminal behaviour while at the same time drawing attention away from the increasingly centralized and authoritarian nature of our public agencies.
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