Use of Criminal Record in Hiring Decisions

July 25, 2012

Employers frequently require job applicants to submit to a criminal background check. An applicant’s criminal history can be relevant to an employer in combating theft and fraud, preventing workplace violence, and avoiding potential liability for negligent hiring. However, the use of criminal-history records can constitute unlawful employment discrimination because exclusion from employment of persons with a criminal record can have a race-based disparate impact. A policy that automatically excludes all employment opportunities because of any criminal conduct is inconsistent with these factors because such a policy does not focus on the dangers of particular crimes and the risks in particular positions.

An employer who wishes to rely on criminal background checks when making hiring decisions must be able to demonstrate that its use of such background checks is “job related and consistent with business necessity.” An employer must be able to establish that it considered the following three factors before deciding not to hire a job applicant: (1) the nature and gravity of the offense listed in the applicant’s criminal record; (2) the amount of time that has elapsed since commission of the offense and/or completion of the sentence; and (3) the nature of the position being sought in relation to the offense.

Recently, the Employment Equal Opportunity Commission (“EEOC”) issued a new guideline that will likely help employers utilize criminal background checks while avoiding claims of disparate-impact discrimination. The EEOC recommends that an employer review the three above-described factors and then conduct an “individualized assessment” of a person who may not be hired because of his or her criminal record. An individualized assessment would generally include a meeting with the applicant to provide him/her with an opportunity to explain the circumstances of the conviction. The individual may wish to offer such relevant evidence as: the facts or circumstances surrounding the offense or conduct; the number of offenses for which the individual was convicted; evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct; the length and consistency of employment history before and after the offense or conduct; rehabilitation efforts; and employment or character references and any other information regarding fitness for the particular position.

Once an applicant provides the employer with additional information, the employer then must consider whether or not the exclusion, as applied to that individual person, is still job related and consistent with business necessity. If the individual does not respond to the employer’s attempt to gather additional information about his background, the employer may make its employment decision without the information.

Of course, an individualized assessment is not necessary in every instance where a job applicant’s criminal record sheds an unfavorable light on the applicant’s candidacy. As an obvious example, a daycare center would not need to conduct an individualized assessment of an applicant with a record of child molestation before eliminating the applicant from consideration.

Nevertheless, employers should consider adding a step to their hiring policy by offering an “individualized assessment” to those potential employees who may otherwise be excluded from employment due to their criminal background. This practice offers valuable protection against an overly broad application of the employer’s exclusion policy. The individualized assessment allows employers to consider more complete information on individual applicants, as part of a policy that is job related and consistent with business necessity.

This information is general in nature and should not be construed as tax or legal advice.

Associated Attorneys