In the previous blog, I spoke about ways that employers can make the entire background checking process easier and less stressful for potential applicants. In this entry, we are going to go over some of the more nitty gritty details about discriminating against an employee based on their criminal history.
Here are some quick stats:
- Every year more than 700,000 people are released from U.S. prisons looking for work
- Millions of Americans – one in four adults – have arrest or conviction records that often follow them throughout their lives. (NELP)
With that said, as a Recruiter or HR Manager, the probability of running into a potential hire or employee with a criminal record is very high. It may seem daunting when you consider this, but you need to be careful not to let a candidate’s criminal record wrongly influence your hiring decision or give a candidate reason to file a discrimination claim against your company.
Things to consider when interviewing candidates with criminal records:
- The fact of an arrest does not establish that criminal conduct has occurred, and an employment exclusion based on an arrest, in itself, that is not related to the job can be considered discrimination.
- An employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.
- An employer should not rely on the conviction record alone when making an employment decision; rather consider the candidate as a whole.
So, what can you do to reduce the likelihood of discrimination? Well, considering that a violation usually occurs when an employer treats criminal history differently for different applicants, based on their race or national origin, a recruiter needs to be mindful in their interactions and hiring decisions with all candidates. Biased comments made by employers that are offensive to a protected group, or statements that reflect negative stereotypes about criminality in reference to a certain group, may be used as evidence that the an employer’s partiality adversly affected the outcome of a hiring decision.
Although criminal records are not protected under Title VII, an employer can be liable in court if a plaintiff can prove that they were treated differently based on their race, religion, or other protected basis. For example, if an Asian American was rejected for employment based on his criminal record, but a White American with a similar criminal record was later hired, the Asian American would have a valid case in court.
Ultimately, it is HR and management’s job to ensure that company-wide anti-discrimination policies are established and maintained; and that those making the hiring decisions are held accountable and above reproach. It can be very difficult to stay on top of new laws as they emerge, and even harder to guarantee that every employee is following the proper processes, but the effort and time spent on compliance will be worth every penny when you avoid costly lawsuits and ugly public disputes.
Additional Guidance can be found here: The Use of Conviction and Arrest Records in Employment Decisions
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