Commentary

In a survey taken two years ago, when unemployment was low, employers were willing to consider hiring many of the 70 million Americans—or one-in-three adults— who had a criminal record.

Employers were willing to hire someone with a criminal record if that applicant was the best person for the job, according to a study from the Society for Human Resource Management (SHRM) and the Charles Koch Institute (CKI). Employers were willing to consider candidates with criminal histories if they had good references, a solid performance record, and were trained in skills the employer was seeking.

The Equal Employment Opportunity Commission (EEOC), in its Enforcement Guidance on the Consideration of Arrest and Conviction Records, suggests that excluding job applicants who have criminal records may constitute employment discrimination under Title VII of the Civil Rights Act. Employers can maximize their compliance with the law with these suggestions.

Employers should not ask about convictions on job applications, and follow-up inquiries in interviews as to convictions that appear on background checks should be limited to those convictions which disqualify an applicant for a particular position, i.e., a convicted child sex offender working in a child day care or a person convicted of credit card fraud working as a bank teller.

Employers should avoid blanket exclusion policies based on only certain criteria, i.e., criminal status. Consider other factors relative to the conviction, including the facts or circumstances of the offense/conduct; the number of offenses the individual has been convicted of; the age of the convictions; the length and consistency of employment history before and after the offense; rehabilitation efforts; and references.