Justifiable discrimination

I was shocked to read that the amendments to the Human Rights Act that were passed by the Senate yesterday now make it an offence to discriminate against someone because they have a criminal record.

I must be missing something. Does this mean that an employer trying to hire a cashier for a store can no longer reject an applicant because they have a conviction for theft? Does this mean that a victim of an assault can no longer refuse to rent an apartment to their attacker? I’m trying to get some answers on this, and will let you know anything I find out.

By chance, this weekend it emerged that British Prime Minister Tony Blair is planning a significant overhaul of the UK’s Human Rights Act. This follows claims that the UK Act has resulted in the rights of criminals being put above those of their victims and society. It appears that Bermuda’s Act may be making a similar mistake.

If someone is convicted of breaking the law it reflects upon their character in a way that their race, gender, religion or political affiliation do not. As such, it seems like perfectly legitimate grounds for discrimination to me.

» It appears that the criminal record provision has actually been in the Human Rights Act since an amendment tabled in 2000. My bad. However, my reasons for disagreeing with its inclusion remain unchanged.

Comments

[lost in flatts on 18.05.06 at 18:21]

Are we the only country that have this policy? I see the purpose - to offer a second chance - but I can't believe they've passed legislation on it. Another example of the government trying to do the right thing, but just well, not.

[Tiger Bay on 18.05.06 at 18:26]

If that is the case, it goes far beyond the UK Human Rights Act and the European Convention on Human Rights which state:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Aussies do have it. But given the dominant settler heritage I suppose they would! Look here: http://www.hreoc.gov.au/human_rights/index.html#11

[Tiger Bay on 18.05.06 at 18:29]

And here:
http://www.hreoc.gov.au/human_rights/criminalrecord/on_the_record/index.html

It looks like there is a great deal of misunderstanding by employers and people with criminal records about what discrimination on the basis of criminal record actually means.

[The Limey on 18.05.06 at 20:12]

lost in flatts

I think the decision on whether to give a convicted criminal a second chance should be left up to the employer/landlord/etc. They are the ones who will bear the consequences if the criminal has not reformed, not the Government.

[SmokingGun on 18.05.06 at 21:19]

There once was a pedophile named William
He applied for a job teaching children
One day as was feared
A child disappeared
But the law made sure we had hired him.

[Zoom on 18.05.06 at 21:24]

Good god - the Ozzies need about 50 pages to explain the implications of this. What a mess for employers.

Why is draft legislation so rarely made public before it goes before the House? (Indeed why was no public input solicited on this?)

Why is the schedule of the House never made public except rarely by dunleavy's blog?

On the other hand, does it matter? The HR Commission has proven itself to be too disinterested and politically tainted to be effective.

[Zoom on 18.05.06 at 21:32]

From their guide ... understand?

"Under the HREOC Act, it is not discrimination if the job applicant or employee’s criminal record means that he or she is unable to perform the inherent requirements of the particular job. However, the HREOC Act does not define what is meant by ‘inherent requirements’."

[Martin on 18.05.06 at 21:37]

Seems strange that an employer might dismiss for theft of company property from which might follow a successful criminal conviction - yet be penalised for not recruiting someone with a conviction.

Presumably - it is a question of the "conviction being spent" - the debt paid to society etc.

[SmokingGun on 18.05.06 at 21:40]

Who knows the deal. Maybe there's some convicted bank robber out there who's running for top office and someone just wants to make sure the conviction can't be used against them....

[The Limey on 18.05.06 at 22:45]

It appears that the criminal record provision has actually been in the Human Rights Act since an amendment tabled in 2000. My bad.

However, my reasons for disagreeing with its inclusion remain unchanged.

[Carol Shuman on 19.05.06 at 01:58]

Unbelievable! Of course, we have the criminal attorney, Mr. Richardson, who can speak from the heart--or whatever. Friends with Mr. Mundy, I'm told, and quite knowledgeable about the man's activities--but privileged, I'm sure.

Limey, you've given me something else to research--which I always appreciate, seriously.

Certainly, the U.S. chooses to discriminate--it wants no part of another country's felons, and it makes its own sex abusers register. And thank God for it.

Where can I find the latest version? I've seen the one on Bermuda Law online--our lawyer assured us that Bermuda doesn't come under the European Court --It's in the first paragraph that Bermuda does. (That's why we got Cherie--a human rights and UK lawyer, for Becky's case. I wonder if complaining about her murderers is discriminating--hmmmmmmmmm)....

[Shipwrecked on 19.05.06 at 08:51]

Hmmm... Lets see- I have two cashiers to interview...

I don't hire the first cashier for being gay- and there is nothing he can say, even if I walk up to him in the middle of the store and say in front of customers "hey you- yeah you, the god damn faggot- get the f*ck out of here- I don't want your kind working for me".

I go to the second applicant and his resume says that he has stolen from the till of every company he ever worked for. I tell him I won't hire him because I can't afford to loose money at the till. He complains and I pay a big fine for discriminating against him.

Yup, that makes perfect sense to me. Bill Engvall fans will understand when I say... "Here's your sign"....

[sandgrownan on 19.05.06 at 09:02]

Is it me or do we seem to do everything ass-backwards in Bermuda?

[The Limey on 19.05.06 at 13:00]

Earlier today, I received the following clarification on the operation of the Act from Myra Virgil, Executive Officer of CURE, via Joanne Brangman, Acting Permanent Secretary for the Ministry of Community Affairs & Sport:

"The criminal record discrimination prohibition would not ‘prima facie’ make it an offence for an employer to reject an applicant for a position of cashier, because the employment sought is in the same area (or relevant to the area of the conviction). In other words, an employer cannot be expected to contract with a person seeking employment as a cashier (which involves the handling of money) when he or she has a conviction for theft. Similarly, a person with a record of pedophilia could not be expected to be hired to work with children. This also means that a landlord, who is a rape victim, could not conceivably be expected to contract with a tenant who had a conviction for the same offence from, which she suffered. The Commission makes such considerations.

Exceptionally, there is the situation where the applicant has a certificate of rehabilitation. If one is in possession of a certificate, it is an offence for the “would-be” employer to refuse employment on the basis of criminal record – indeed it would be an offence to make any reference to the conviction whatever once the employer is aware of it. However, the criteria for obtaining a certificate of rehabilitation are quite stringent, and from our experience, make it very difficult and likely impossible for a person with a serious conviction to obtain one.

For the most part, the incidence of criminal record discrimination arises in employment. However, it is a general ground of discrimination under the Act, which means that technically it can be applied to any of the “Areas” set out under the Act. In the act of balancing rights and freedoms, part of the nuances of the human rights protections take into consideration that without some protections, a person with a criminal record (which could include non-summary offenses) might never work again, or work amongst those who use the record against him or her, without just cause.

We also note that whilst the ‘criminal record’ prohibition as it appears under the Act, does not limit its application to employment, it has hardly ever arisen in any other context. The amendment to include all of the protected grounds of discrimination from harassment, is a proactive amendment, predicated upon the belief that harassment in the workplace takes many forms."

[Somers on 19.05.06 at 13:29]

Clear as mud.

[J Galt on 20.05.06 at 09:02]

Hi Shipwreaked,

By your example, I'm drawing the conclusion that you would support the act if it forced you to hire the homosexual. Where I think you should be against it no matter who it tries to force you to hire, i.e. gay, criminal, black, white, muslim.

The act hurts all individuals because it removes your ability to freely choose who you wish to hire.

Limey can't you see your complaining about this amendment is like the church complaining about gay rights, If you have no problem with the group gaining the advantages or benifiting from the act its fine, but when its a group you are at odds with, then the act is unjust.

[The Limey on 20.05.06 at 11:02]

Galt

Someone who has a criminal record has broken the law. Someone who has a criminal record has demonstrated a lack of integrity.

In contrast, it's not illegal to be homosexual. Being gay does not demonstrate a lack of integrity. Sexual orientation is not a choice, it's something you're born with.

[ace on 20.05.06 at 11:10]

"Clear as mud."

Yup, lawyer speak for "Yes, we drafted some more stupid legislation that we need to clarify."

[J Galt on 20.05.06 at 17:15]

Limey,

What if you were innocent of the crime you where found guilty of? Then you have a criminal record, but have you demonstrated a lack of integrity?

But that is neither here nor there I'm not attacking homosexuals just highlighting that if you call for special rights for one group then you can't turn around and cry when someone decides to reward another group special rights of thier own.

Your saying Mr shop owner, you should not be forced to hire an ex-con because they have demonstrated a lack of integrity, but!! you do have to hire the (insert any adjective here)becasue they where born that way etc...

How can it be ok for one group and not the other? Aren't we all human?

Perhaps, call me crazy, but what if we left it up to each individual to decide for themselves, who they want to hire, fire, rent to, live with , marry, interact with etc... etc...

[Two Cents on 21.05.06 at 02:24]

- An offence to discriminate against someone because they have a criminal record.

- Unemployment insurance

- Alternatives to incarceration

Do you guys really wonder why ??

The PLP is simply pandering to the unemployable & criminals (after all we have plenty of both here), I smell an election coming soon !!

The only other option that I see is that the Gov't know that they can't fool the public for too much longer, and are looking for protection for after they do their time.