Issues in Hiring Applicants with Criminal Records

By Lindsay Raddeman
American DataBank Staff Writer © 2007

The Equal Employment Opportunity Act-and all the other legislation associated with it-has made employers aware of the need for unbiased hiring processes. Clearly, an ethical employer or recruiter would never discriminate against an applicant based upon his or her race, ethnicity, national origin, gender, age, disability status, or religion, yet what happens when an applicant with a criminal record enters that same employer or recruiter's office? Certainly, the applicant has paid his or her debt to society and deserves a second chance, but shouldn't the employer consider the safety and security of the company's employees and clients as well? As with race, ethnicity, gender or age, the Equal Employment Opportunity Commission (EEOC) has provided a set of guidelines for this exact situation.

Employers must examine multiple factors when evaluating applicants with criminal convictions. The EEOC specifies three considerations that employers must assess: the nature and gravity of the offense, the amount of time that has passed since the conviction or completion of the sentence, and the nature of the job sought. As is stated in the Equal Employment Opportunity Commission Compliance Manual, "…employers also must be able to justify such criteria as job related and consistent with business necessity." If the employer can determine that the applicant's criminal history would interfere with his or her job function, or, more importantly, would put his or her potential co-workers or clients at risk, then the employer is legally justified in rejecting the applicant. Outside of these circumstances, excluding all applicants with criminal histories, or evaluating an applicant's criminal history alongside his or her race, ethnicity, citizenship status, or any other protected category is strictly forbidden by the EEOC.

Consider these examples as to how criminal history might affect individuals applying for different positions. Assume that you are in charge of hiring bus drivers for a school district and discover that one of your applicants has been convicted of a DUI and has been in multiple accidents over the last five years. In this case, you would be justified in rejecting this applicant as the conviction and the accidents are relatively recent and directly relate to the job function. Yet consider what would happen if an applicant with the same record was to apply for a non-driving position at an accounting firm. While DUI convictions and a generally bad driving record are serious in nature, in this case, neither the conviction nor the accidents directly relate to the applicant's job function. As the position does not involve driving, the accounting firm would not be justified in rejecting this applicant because of the conviction and Motor Vehicle Record.

Individuals with criminal records deserve every opportunity to make a new start and contribute productively to society, and the protection of the Equal Employment Opportunity Commission allows them to do so. These same guidelines, however, also allow employers to protect the interests of their businesses and their clients and avoid negligent hiring issues. Making any employment decision involves a great deal of consideration and responsibility, particularly when a criminal record is involved, yet criminal convictions cannot be the only factor in any ethical, legally sound hiring choice.