In June of 2013 Forbes published Background Checks On Job Candidates: Be Very Careful . The article highlighted lawsuits filed by US federal regulators who argue that employers who exclude all job applicants with criminal records may be guilty of racial discrimination.
Over the last few years local employers too have become more cautious about who they hire. The number of annual lie detector tests conducted each year as part of a pre-employment screenings have increased, as have background and criminal record checks. In South Africa not hiring an applicant is easier than getting rid of a troublesome employee. Yet that may change in the future.
Sources within the South African labour law arena state that a business may refuse applicants certain positions when background or criminal record checks reveal that the past conduct of those applicants are in conflict with the nature of those positions. However, unsuccessful applicants may still challenge those decisions at the CCMA, potentially costing employers thousands in administrative and legal fees.
In America 70% of employers conduct criminal record checks. This while one-third of Americans have some kind of criminal record. The incarceration ratio between African Americans and whites is 6:1 – arguably contributing to the ‘racial discrimination’ argument.
In South Africa things are not so straightforward. Discrimination isn’t limited to ethnicity alone, with cases of gender and physical ability discrimination often making headline news. The South African Constitution grants all South Africans the “…full and equal enjoyment of all rights and freedoms.” So at what point is it considered discrimination when you hire some and not others based on their pasts?
For employers it’s a double-edged sword, since they can be held liable for negligent hiring, should actions of an employee with a criminal record result in the harm of others.
What to do then?
When the best candidate for a position has a criminal record, should he or she be hired based on the time since conviction, or whether or not the nature of the crime for which the individual was convicted poses a threat to the workplace and those in it? Should he or she be hired at all, even when the crime has no relevance to the position or company? Anecdotal evidence suggests that 20% of South African job seekers have criminal records.
Luckily, however, the South African Police Service has indicated a reduction in crime in relation to population growth . A continued reduction in crime may ensure that there are enough job applicants to safeguard employers against a situation where they have to choose between a convicted applicant with the right credentials and experience, and record-free applicants less suited to the job.
Yet a reduction in crime depends on a reduction in contributing factors, like poverty. With the election looming, the question becomes one of the future: will the efforts to eradicate poverty and other contributing factors be successful enough to stem crime in a country that still has one of the highest crime rates in the world, or will employers find themselves in yet another employment quagmire in the very near future?