Page 55 - วารสารวิชาการสิทธิมนุษยชน

54 วารสารวิชาการสิทธิมนุษยชน

Human Rights Legal Measures in Protecting the Right
of Person Who is Discriminated by
“Criminal Record” in the Context of Employment*

Associate Professor Kanathip Thongrawewong

Abstract

This article aims at studying the practice of using criminal records to
determine qualification of applicant and make decision relating to employment.
The main issue of this paper is to examine the legal protection in case of discrimination
based on criminal record in the context of employment from perspective of human
rights. According to the study of foreign laws such as the U.S., Canada, Australia,
this paper found that the discrimination based on criminal records is protected by

the Civil Rights Act of the U.S. provided that such criminal records are used in relation
to ground of discrimination i.e. race, color, religion, sex, or national origin. As for
the Canada and Australia, “criminal record” has been stipulated as a protect ground
in non-discrimination laws of both federal and state level. However, the comparative
analysis indicated that currently there is no general “non-discrimination law” of Thailand
that can be applied to cover several “ground of discrimination” such as gender, race,
religious etc. and several “area of discrimination” such as employment, education,

good and service etc.. Although there are specific laws relating to non-discrimination in
employment, the “criminal record” is not explicitly protected. Regarding the national
human rights commission, there are complaints claiming the discrimination based on
criminal records in both government and private sector. However, the lack of specific
provisions on non-discrimination based on criminal record in human rights law leads
to the insufficient protection. Furthermore, by comparing to foreign laws, the paper
found that “Genuine Occupational Requirement or Inherent Requirement Exception”
is a critical principle for determining whether such criminal record is “relevant or

* This article presents the research on Human Rights Legal Measures in Protecting Right

of Person Who is Discriminated by “Criminal Record” in the Context of Employment funded by
the Office of the National Human Rights Commission.