Hiring managers face a difficult dilemma knowing how to deal with the criminal conviction records of job applicants. On one hand, no company wants to put high-risk employees in jobs that involve handling company money and valuable assets; companies need to do all they can to prevent theft and fraud. Nor is it doing high-risk employees any favors to put them in sensitive positions of trust if they are still struggling with strong temptations to steal; doing so foolishly overlooks the powerful influence of the environment on behavior.
On the other hand, applicants with criminal records should not be permanently barred from ever holding a job again because of an earlier mistake. Ex-offenders can be successfully rehabilitated and they deserve to have a job if they have truly changed their lives. Knowing how to handle this issue represents a difficult ethical challenge for hiring managers.
This issue has also become a thorny legal issue. The Equal Employment Opportunity Commission (EEOC) has taken legal action against employers who ask about criminal convictions on their application forms and then automatically disqualify those who say yes. Since minorities are over-represented in the criminal justice system, the EEOC claims that automatically disqualifying those with criminal backgrounds amounts to discrimination on the basis of race, which violates the civil rights laws. A document issued by the EEOC in 2012, called an enforcement guidance, recommends that employers avoid asking about criminal records on the initial application forms. Before rejecting someone because of a criminal record, the EEOC instructs employers to examine such things as when the conviction occurred, whether the crime was related to the job in question, and what rehabilitation efforts the individual has made.
Although the EEOC’s enforcement guidance is not a law, it still has teeth due to the EEOC’s prosecutorial power to request information and conduct investigations. Furthermore, 13 states and about 70 local jurisdictions have passed laws restricting employer requests for criminal records early in the hiring process. Other jurisdictions are also considering similar ban-the-box initiatives, referring to the check-off box on application forms.
Adhering to this enforcement guidance requires employers to postpone asking about criminal convictions until after they have made a conditional offer of employment. Then they can ask; and if the applicant says yes, the hiring manager is required to make an individualized consideration of each job applicant. These decisions not only take more time, they are also very subjective and difficult to make since there are never clear guidelines for knowing how much time since the last offence is adequate or whether rehabilitation has been successful. There is no way to know with certainty whether someone has truly changed.
While hiring managers may want to be compassionate and give felons a second chance, being overly compassionate can result in severe consequences if the person they hire commits another criminal offense. Hiring managers should be cautious about their decisions. Employers are guilty of negligent hiring if one of their employees commits a criminal act that injures other employees or customers and they knew about this employee’s criminal background.
The issue of hiring people with criminal backgrounds, therefore, is a difficult challenge that requires balancing multiple interests: hiring managers are expected to follow the EEOC’s guidance to avoid legal jeopardy, workplaces need to be safe from potential violence and fraud, companies need to protect their assets and money, and job seekers want a fair opportunity to seek employment. Having a job is one of the most important variables in helping people on probation or parole avoid going back to prison. A stable job helps offenders rebuild their lives by providing the income they need to become financially independent and by helping them acquire the self-esteem they need to be productive citizens.
This issue is obviously one that requires careful balancing and should not be dictated by fixed regulations. Ban-the-box initiatives are counter-productive and unwise. Some industries, such as the banking and security industries, should not be required to postpone asking about disqualifying events since doing so only postpones the inevitable for most of their jobs. Having to wait until a conditional offer of employment is made to learn of criminal convictions is inefficient and a waste of time.
On the other hand, jobs that are not so sensitive should not be totally precluded from ex-offenders. Nor should they be discouraged from seeking such jobs. The EEOC was wise in telling employers who ask about dishonorable military discharges and criminal convictions to accompany that request with a notice that such events are not an automatic bar to hiring. Much more needs to be done to help ex-offenders obtain employment and the time hiring managers spend conducting individual reviews is well-spent time for a better society.
At the same time, people who have committed a criminal offense need to realize that their prior conduct has legitimately cost them the trust of society and future employers. They should expect to shoulder the burden of rebuilding that trust, which is something that takes time. But, it can be done. $