European employment discrimination based on criminal record I – mandatory bars

There is no body of research on European criminal record-based employment discrimination (CBED) comparable to the employer surveys and field studies done in the United States. images-EUWhile European concern for informational privacy keeps criminal records out of the public domain, European countries do not prohibit employment discrimination based on criminal record. In fact, as in the United States, European countries make certain criminal records disqualifying for a vast range of public sector and some private sector employments.

This posting provides background on European, and especially Spanish, mandatory CBED. Our next posting provides background and discussion on discretionary CBED by private employers.

The great comparative law scholar, Mirjan Damaska, pointed out in a classic article published more than 40 years ago that countries vary significantly with respect to which professions and occupations they place off-limits to people with a criminal record.  However, they are most often ineligible to serve as judges, military officers, high-level executive branch officials and police officers of all ranks. This must reflect a consensus that persons who hold those powerful, responsible or prestigious positions must have impeccable honesty and integrity, and that people who have been proven to engage in criminal conduct are presumed to lack those qualities of good character.

Of course, this does not explain why the employment bar extends far down the ranks of civil service positions. (In some countries even a gardener working for a government agency must be conviction-free.)  European countries also have laws applying categorical restrictions to certain private sector positions, for example, bank officials and private security and gambling enterprise licensees. In addition, some European countries have passed laws requiring criminal background checks for persons applying for jobs involving close contact with children or other vulnerable persons, presumably with the purpose of ruling certain people with a record out of consideration.  A recent E.U. framework decision [CITE] requires member states to empower their courts to include in a sex offense sentence an order prohibiting the defendant from working in any position requiring close contact with children.

220px-Bandera_Nacional_de_España_(Pl._Colón,_Madrid)_03Spain, like many European countries, generally requires a conviction-free record for employment in “public administration”, roughly equivalent to U.S. civil service. Additionally, there are laws making a clean criminal record a prerequisite for obtaining certain occupational licenses. For example, only individuals who have never been convicted of a crime (technically – no unexpunged* conviction) can be licensed as a commercial driver, a taxi driver (in some cities), operate a gambling house, work in private security or manage a private school. Moreover, some non-governmental professional organizations that possess authority to license and discipline members (for example, lawyers and notaries), also make a conviction-free record a requirement.

However, the impact of these employment bars is somewhat softened because some of them (e.g. civil servant, university professor, judge) only apply if the criminal court judge explicitly imposes them as part of the sentence. In a word, they apply only if imposed as direct and not collateral consequences of conviction.

Furthermore, laws or court orders restricting employment based on previous conviction do not appear to be vigorously enforced. In order for mandatory CBED restrictions to be enforceable, employers and licensing authorities must know whether a job applicant has a previous conviction. In Spain, as in most European countries, access to conviction information is severely restricted. While some government agencies (e.g. police) are explicitly authorized to obtain criminal record information directly from the National Conviction Register (NCR), other agencies (e.g. public schools) must make do with asking the job applicant to sign a statement attesting to a clean conviction record. Of course, they also have the option of asking the job applicant to submit an certificate of no criminal convictions which can be obtained from the NCR.

This posting draws on Larrauri & Jacobs, “A Spanish Window on Euopean Law & Policy on Employment Discrimination Based on Criminal Record,” in EUROPEAN ENOLOGY, eds, Tom Daems, Dirk van Zyl Smit and Sonja Snacken, available here.

*We will offer a post on expungement in the near future.