Taking a fresh look at criminal record discrimination

Disclosure of criminal record information during the recruitment process makes job applicants vulnerable to discriminatory treatment. At the same time, there may be legitimate reasons for excluding applicants on the basis of their criminal record from particular jobs. This article argues that the various legislative schemes governing this area have not been able to ensure that where there is a discretion regarding the use of criminal record information this is exercised in a way that involves a genuine assessment of whether an individual’s criminal record has an actual bearing on their capacity to undertake a role. The current legislative framework creates uncertainty and confusion for employers and job applicants alike. This article canvasses potential reform options directed to improving enforcement of federal anti-discrimination obligations, simplifying aspects of spent conviction schemes, providing ways of clarifying how various obligations apply to a particular employment context, and preventing the premature disclosure of irrelevant or inaccurate criminal record information during the recruitment process.