In the October 24, 2014, issue of the New York Times, I read a great article about curbing employment bias against ex-convicts, talking about the rampant discrimination during the hiring process for those with criminal records. Unfortunately, some states still allow employers to ask about criminal history at the start rather than at the end of the process, creating a huge potential for discrimination against candidates with convictions. In addition, many don’t ask about felony convictions within the past 7 years (the standard question), but rather ask about arrests and/or “have you ever been convicted of a crime”, inferring that misdemeanors could be used against you as well.
What worried me terribly in this article was one hiring manager saying, “the fact they have a criminal record proves that at one point in their lives they weren’t trustworthy,” using a conviction as the sole litmus test for hiring decisions. And while I’m not making a blanket statement about hiring or not hiring those who have served time for crimes committed, to say that someone who, for example, got a DUII six years ago, is one hundred percent not trustworthy compared to someone who has not? That’s just goofy logic.
- What about the trustworthiness of the applicant who cheats on her spouse?
- What about the trustworthiness of the applicant who beats his children and isn’t found out?
- What about the trustworthiness of the applicant who lies on his taxes and doesn’t get caught?
But you can’t ask that on an application, now can you.
Yes, of course you don’t want to hire an accountant who’s been convicted of fraud, and you don’t want to hire a childcare provider who is a registered sex offender, or a delivery driver with a drunk driving record. But what about those jobs where their criminal record doesn’t apply?
As one job applicant (with a handgun possession conviction from 10 years earlier) whose candidacy for a janitorial role was immediately pulled by HR said in the article, “I was somehow too dangerous to clean the floors.”
I’ve worked in Human Resources field for 16 years and have seen the issues come up in nearly every company. Fortunately, most of my employers have had the policy of decisions being dependent on whether the crime was relevant to the work, but it’s also because I as the recruiter or HR representative have always asked what our specific policy was. Most employers don’t have a written strategy or policy for dealing with the criminal question, and with that many haven’t done the homework to know what they can and can’t ask, and how they’re allowed to use this information in making hiring decisions.
As the Ban the Box campaign informs us, “The EEOC has already begun prosecuting employers who have a blanket ban on hiring people with felony convictions, since this ban violates an EEOC requirement for “individualized assessment” of the circumstances of any past convictions.”
Hiring and HR teams, do you want to learn more about what you can and can’t do? Check out the enforcement guidance provided by the EEOC. “And review the infographic below to start the process of assessing what you are currently practicing in your workplace – not what your policy claims you’re doing, but what you are really doing. “Ban the Box” generally prohibits employers from asking about your history during the initial part of the application process as well as preventing them from running background checks before an offer.
If you’re an applicant, pay attention – whether you have a criminal record or not (1 out of 4 do) – to what employers are asking on the application. If they want to run a background check before an offer is extended, that’s should be a warning sign that this company may be discriminating. Employment offers from companies who conduct background checks should include the paperwork with the offer letter (not before), with the forms stating how the information is used and how far they are going back.
As Mark Levin said so perfectly, “It really is a great benefit to public safety if ex-offenders are able to get jobs, find places to live and get occupational licenses — whether it’s from the perspective of the ex-offender or those of us who are going to live next to them.”