Failure to Consider Ex-Offenders May Cost You

Traditionally it has been deemed that if a person has committed a crime, he or she is a potential re-offender. Because of this, a felony conviction harshly restricts one’s ability to gain meaningful employment.

The majority of employers glance at the felony conviction box and conclude that other applicants are better suited for employment. Some applicant management software will kick the application out before any human eyes even have the opportunity to review the file. Society has been trained to believe a convicted felon cannot be trusted and is not deserving of employment.

The U.S. Equal Employment Opportunity Commission has guidelines that prohibit employers from implementing blanket policies that systematically exclude job applicants with criminal records from consideration. The EEOC contends that such policies are ineffective. Moreover, employers that fail to abide by the EEOC guidelines subject themselves to disparate impact discrimination charges in violation of Title VII of the Civil Rights Act of 1964.

There is no federal law that prohibits an employer from asking about arrests and conviction records. The most applicable federal regulation is the Fair Credit Reporting Act, which requires an employer to advise an applicant in writing that a background check will be conducted, obtain the applicant’s written authorization to obtain the records and notify the applicant that a conviction will not automatically result in disqualification from employment.

This protection does little to ensure gainful employment opportunities for ex-offenders. This is primarily because the unwritten policy followed by many employers is that “we do not hire convicted felons.” This blanket policy has indoctrinated many employers to effectively believe that ex-offenders should be automatically denied employment.

For such a policy to be in compliance with EEOC guidelines, the criminal conviction must be job-related and consistent with business necessity, i.e., crimes of dishonesty. The EEOC has promulgated numerous factors to guide employers in implementing hiring policies. Such factors ensure that an employer’s exclusionary policies and screening processes will not subject them to liability.

The factors include: facts or circumstances surrounding the offense; number of convictions; age at the time of conviction or release from prison; evidence that the applicant performed the same type of work post-conviction with the same or a different employer with no known incidents of criminal conduct; length and consistency of employment history before and after the offense or conduct; rehabilitation efforts; education or training; and employment or character references regarding fitness for the position. Additionally, the EEOC guidelines indicate that an employer cannot have an application which inquires into whether an applicant has been convicted of a felony without leaving a space to explain or provide information in respect to the felony conviction itself.

The majority of employers fail to distinguish arrests from convictions. In court, each person is presumed innocent until proven guilty. Jurors often make the erroneous conclusion that a person is guilty until proven innocent. Many human resource managers make the same assumption in their hiring policies and automatically exclude an applicant based on an arrest. An arrest does not equate to a conviction, which occurs after a formal declaration of guilt by a jury or judge in court.

Many times HR managers will inquire either through applications or interviews about arrests and halt the employment process upon receipt of an affirmative response. Human resources professionals must distinguish and value the difference between arrests and convictions in their hiring policies. An automatic denial of employment without further clarification of an arrest versus a conviction subjects the employer to a potential EEOC claim for violating federal anti-discrimination law.

Convictions generally emerge from background checks, whereas a majority of arrests will not. Information on ex-offender status may surface through applicant self-disclosure or a criminal background check. If the information is self-disclosed, there is no doubt that it is accurate. However, the challenge arises when a criminal background check reveals false information, which can result in denial of employment. The bottom line is that even if ex-offenders have referrals and good references, they are still faced with receiving the generic rejection letter.

What happens when ex-offenders are constantly rejected by employers? Many explore the entrepreneurial track to earn a meaningful living. Some even resort to using an alternate identity to evade criminal background checks. The most common route is to lie or attempt to mislead an employer in hopes that the company will not perform a check. However, dishonesty usually leads to termination once the employer discovers the false information. Lastly, some ex-offenders commit additional crimes to survive.

If employers were to consider the applicant’s criminal history later in the hiring process rather than initially, they would be forced to at least consider the ex-offender’s qualifications. This is the stance of advocates of the “ban the box” proposal. This is a movement pushing for lawmakers to create legislation that will ban the portion of employment applications that inquires into the applicant’s criminal history. Such practice has already been implemented by the Wisconsin legislature, which prohibited all use of criminal histories or arrest records, just as it prohibits discrimination based on age, race, creed, color, disability and other protected classes.

It is common for companies to reject applicants with criminal records because they fear negligent hiring suits. It is worth noting that the vast majority of negligent hiring suits are instituted based on a failure to complete criminal background checks. Courts often stress that such liability can be avoided without banning all ex-offender employment. However, the common solution to avoiding this liability has simply been for employers to identify all ex-offenders and disqualify them at the application stage. However, if an ex-offender is given an opportunity to explain the conviction, and the employer considers whether it is relevant to the position, it will significantly decrease the employer’s liability.

There is a disproportionate number of minorities with criminal records, which translates to a vast number of minorities who are excluded from the applicant pool prior to their qualifications being considered. According to the U.S. Department of Justice, in 2011, black males were imprisoned five to seven times the rates of white males, and black females were imprisoned two to three times the rates of white females.

HR professionals need to be concerned with the liability of disparate impact suits for automatic exclusion of ex-offenders. As incarceration rates for minorities increase to a point where there are more minorities excluded from employment, there will be a political push for a new protected class. The recognition of such a protected class will be costly to employers and beneficial to plaintiffs in the long run. It is in society’s long-term interests that ex-offenders be free to seek meaningful employment unimpeded by systematic discrimination so that such individuals can make valuable contributions to society.

Stephanie M. Ridore is a criminal defense attorney and human resource professional in Orlando, Fla. She can be reached at editor@diversity-executive.com.