The EEOC provides guidelines you should consider following when asking about criminal backgrounds.
For example, let’s say two applicants have comparable educational and employment experience backgrounds. They are both college graduates in the same field with equivalent job performance histories. Both applicants have criminal convictions for possessing marijuana as minors. One is African American and one is Caucasian. Your reason for hiring one over the other cannot be based on belonging to protected classes under Title VII of the Civil Rights Act including race, color, sex, or nationality.
You should follow these hiring guidelines:
- Treat applicants with similar criminal records consistently. If you screen out African American candidates because of a particular criminal record then you should also screen out other individuals of different colors and races with the same criminal record.
- Sometimes a policy or practice can significantly disadvantage people of a certain protected class in a certain region. However, it may be important if you can show that in the geographical area where you are recruiting, the percentage of Hispanics or African Americans with arrest records is not higher than Caucasians in the same area. This establishes that you aren’t disadvantaging protected classes based on criminal backgrounds.
- Delay asking for criminal background information until later in the hiring process. It’s better if you can evaluate an applicant’s other qualifications before asking about a criminal record. However, depending on the laws where your business operates, you may be required to check criminal backgrounds early in the process.
- Evaluate the criminal history in relation to the risks and responsibilities of the job. The nature of the crime, how long ago the criminal arrest or conviction occurred and the nature of the job are factors to consider.
- Treat arrest records differently than conviction records. Arrest records can be inaccurate and are not proof a crime was committed. Even so, an arrest can lead to an investigation of the conduct underlying the arrest and be a factor in a negative employment decision.
- Review the accuracy and relevance of a conviction record before making an employment decision based on the arrest record. After reviewing the criminal record, you may decide it was inaccurate.
- Give applicants an opportunity to explain their criminal history. Hearing the applicant’s side of the story is often important, including how their views and life has changed since the arrest or conviction.
Stephen Hans & Associates assists small and medium sized business ownerwith employment related concerns.