Put yourself in Casey Anthony’s shoes.
I know it’s a bit distasteful, but pretend for a second you’re a 25-year-old female who’s been acquitted of murdering your child, yet serving jail time for four misdemeanor counts of lying to detectives.
Not to mention you’ve got felony check fraud convictions against you.
Your jail sentence ends a week after it began, it’s time to start your life over, and that means finding a job. But you haven’t worked since 2006.
Now factor in the ramifications of being notorious throughout the national media.
I had to wonder what Anthony will do now, and how employment discrimination laws might affect her situation.
(Quick note: Florida is not a “Ban the Box” state. Even if the Anthony name wasn't infamous, a background check is still going to happen.)
Playing with this scenario, I asked our in-house corporate counsel, John Reid, about employment law; specifically, what will Anthony have to go through to seek employment?
Reid told me that while you can’t exclude someone solely on the basis of a criminal conviction, “it can be used as a factor in determining whether someone is qualified” for a job.
He told me that the Equal Employment Opportunity Commission stipulates that “an employer must have a business necessity to deny employment to an applicant with a criminal record.”
Keeping that in mind, Reid said employers have to consider:
- the gravity of the offense (murder is pretty grave, but remember, she wasn’t actually convicted of murder, or even manslaughter)
- the time that has passed since the conviction or completion of sentence (if I had $4,000 worth of fines to pay, I’d get my ass in gear on securing a job)
- the nature of the job held or sought.
Reid defined at-will for me:
“If employed, Ms. Anthony’s employer could terminate her for any reason, so long as the reason is not based upon Ms. Anthony’s status as a member of a protected class,” he said.
"Age, sex, race and religion top the list of protected classes, but what about criminal?" I asked.
This is a grey area, Reid replied.
"The EEOC enforces Title VII of the Civil Rights Act of 1964," he said. "While criminal status is not a protected class under Title VII, excluding people from employment based solely on criminal status can have a disproportionate impact on members of protected classes. This is why the EEOC is so concerned with it.
“While an employer would not be able to preemptively Ms. Anthony employment, it’s likely that they would try to drum up a ‘business necessity’ to deny her a job. If this reason really is a ruse to conceal the real reason for termination, then Ms. Anthony would be able to attack the denial as being a ‘pretext.’”
An example of a pretext would be an employer saying, “We just don’t feel you’re a right fit for the company.”
If the company who doesn’t consider her a good fit is a daycare center, there’s no doubt in my mind they had a business necessity in mind.
Proving discrimination is hard, not to mention time-consuming. Because direct instances of discrimination are rare, he said, often, the only way it can be proved is through an aggregate – i.e., the company has a history of not hiring people with criminal backgrounds.
“It is heavily skewed in favor of employers,” Reid confirmed. “It’s an uphill battle, especially in a case with this much publicity.”
Just as I suspected.
I could be wrong, though. Anthony may not have to search for a job. Many are speculating that Anthony will be offered book and movie deals.
She may never have to work again. Problem solved.