Giving ex-offenders who have served their sentence a fair chance at re-entering the workforce is a social goal many people can support. The problem is, employers have other, often competing goals such as maintaining a competitive advantage in their marketplace, improving productivity, minimizing their human capital risk, and avoiding a negligent hiring lawsuit.
The EEOC enforcement guidance on the use of arrest and conviction records in hiring decisions was designed to address the potentially discriminatory effect of using such records in the employment process. The guidance specifically targets racial discrimination based on the concept that the consideration of criminal records may have a disparate impact on certain races, especially African Americans and Hispanics.
The guidance forces employers to balance the risks of a claim of negligent hiring with the risk of a claim of discrimination.
The Wall Street Journal’s James Bovard and others assert that the EEOC policy actually may have the perverse effect of reducing all minority employment, not just members of racial minorities with criminal histories. Bovard cites research evidence that minority hiring decreases when criminal background checks are banned or when employers stop using them out of fear of discrimination charges.
Bovard’s strongly worded article drew a response from Peggy Mastroianni, Legal Counsel to the EEOC, also published in the WSJ. Mastroianni argues that the EEOC guidelines provide “practical advice to employers on balancing workplace security with civil rights” and that “employers can best manage the risk of crime in the workplace by screening applicants or employees in a targeted and fact-based way.” She offers the standard three criteria employers should use in criminal background screening: the nature of the offense, the length of time since the offense, and the nature of the job.
Like it or not, employers need to consider the advice of the EEOC and ensure their hiring practices are fair to all.
Bovard would characterize the kind of screening recommended by Mastroianni as an “intricate ‘individualized assessment’”, but it does point the way to a process employers can use for criminal background checks.
Here are some basic steps you can take in using criminal history as part of the hiring process:
- Remember that using criminal background as part of your screening process is legal. You have a right to consider information that is relevant to the job in question in making a hire, and sometimes that includes criminal history.
- Avoid using blanket exclusion policies. If it can be alleged that you refuse to hire anyone with a criminal history, you may end up on the wrong end of a lawsuit like BMW and Dollar General did.
- Notify your applicants that you are going to conduct a criminal background check and get their permission to do so.
- When you do find an applicant has a criminal background, be certain that excluding the applicant is job related and a business necessity. Use the three criteria suggested by Mastroianni and required by the EEOC in making the decision (these are the so-called “Green” criteria): nature of the offense, length of time since it was committed, and the nature of the job.
- Conduct an individualized assessment of the information supplied to you and the information you’ve gathered about the individual.
- Use the two-step adverse action procedure if you decide to exclude someone because of a criminal background finding. First, notify the applicant that he or she is going to be excluded for that reason, and second, give him or her an opportunity to respond with mitigating information before making any adverse hiring decision based on the background check.
Should you hire an ex-offender?
If your applicant with a felony conviction fulfills the requirements for the job, you may want to hire him or her. In following the steps outlined above, you can better navigate the trade-offs between making a bad hire and potentially discriminating against otherwise worthy employees.