Criminal Background Checks Still a Necessity When Hiring

A recent spate of lawsuits has got me thinking about second chances, and whether and how employers should give them to job seekers.

A little background: the Equal Employment Opportunity Commission has filed several lawsuits against employers, claiming that their ban on hiring people with criminal records (however minor) violates Title VII of the Civil Rights. According to the New York Times, although federal law doesn’t prohibit discrimination based on having a criminal past, the EEOC “has adopted guidelines that say a blanket ban on such hiring discriminates against minorities that have higher rates of convictions, violating Title VII of the Civil Rights Act.”

Because the Internet has made conducting criminal background checks easy and relatively inexpensive, employers are increasingly conducting such checks on applicants, meaning the number of job seekers who are being weeded out by criminal background checks is higher than ever.

As a lawyer who represents executives, I sympathize with the need to ensure a secure workplace for employees and the public. If you have two equally qualified candidates and one has a criminal conviction that causes you concern, why would you want to take the chance? And nobody wants the PR or legal exposure that results from a worker committing a crime on the job. Often, one of the first questions asked is “who hired that guy, anyway?” You don’t want it to be you.

These are valid concerns and are not to be dismissed lightly.

The key phrase used by the EEOC is “blanket ban.” When employers have a one-size-fits-all policy that forbids the hiring of anyone with a criminal conviction–regardless of the nature of the job or the nature of the conviction–those employers open themselves up to a legal challenge such as the one the EEOC is pursuing now.

A more advisable path is to adopt a case-by-case analysis. If a candidate in his or her 30s applying for a secretarial position had a DWI when they were 19, hiring that person doesn’t pose much of a risk. Alternatively, if someone with a DWI conviction were applying to be a driver, that would probably be a dealbreaker.

Still, it can’t be ignored that the United States has the highest incarceration rate in the world. Zero tolerance laws, three-strikes laws, the war on drugs, stepped-up enforcement of drunken driving laws and countless other “tough on crime” initiatives have resulted in millions of Americans with minor criminal records—Americans who, in another time, would have received a slap on the wrist, their indiscretions written off as youthful errors.

The Times article cites a growing body of “redemption research” showing that the risk of an ex-offender being “re-arrested decreases substantially over time, eventually becoming indistinguishable from that of someone of the same age with no record.” For first-time offenders, that can be as little as 7-10 years after a conviction.

As critics of criminal background checks point out, ex-offenders have little chance to redeem themselves if nobody will hire them.

It’s hard not to see both sides of this story, at least in the abstract. Ultimately, though, an employer has an obligation to create a safe, law abiding workplace. So companies look for employees who are unlikely to steal, drive company cars while drunk or high, resort to physical violence when workplace tensions get high, or harm children or patients under their care.

Employers won’t stop conducting criminal background checks, and I sincerely doubt that even the most ardent critic of routine criminal background checks wants that to happen. But companies should use the information they glean through those checks wisely.

Ultimately, as much as we may revere the notion of second chances, employers must err on the side of creating a safe workplace.

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