Can we screen out anyone with an arrest record, even if it means we hire fewer African Americans?

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Question:

I'm one of the hiring managers at my company. Applicants for all but the most senior positions have to complete a job application that asks whether they have ever been arrested or convicted for a crime. If they check the box to indicate either an arrest or conviction, we've been told to just toss the application and not consider them further, no matter how good their credentials and experience are. The police force in our city has been sued several times for racial profiling and mistreatment of people of color, particularly African Americans. I'm concerned that screening out anyone who's ever been arrested might unfairly perpetuate these problems -- and get our company in trouble. Is it legitimate to refuse to hire anyone with a criminal record or are we creating a liability risk? 

Answer:

A blanket policy of refusing to hire anyone who has ever been convicted or arrested -- for anything -- could be illegal discrimination. It sounds like your city has had well-publicized problems with racial bias in law enforcement, but it isn't alone: According to statistics gathered by the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces antidiscrimination laws, African Americans and Latinos are arrested in numbers disproportionate to their representation in the general population. African Americans and Latinos are also more likely to be arrested for drug offenses, even though their rate of drug use is similar to the rate of drug use for whites. And incarceration rates are also heavily skewed. Because of these disparities, screening out anyone with an arrest or conviction record could have a disproportionate impact on employees of certain races. 

The EEOC recently issued enforcement guidance on this issue. The EEOC recognizes that employers have a legitimate interest in keeping employees who have committed certain offenses out of certain positions. For example, an employer would have good reason not to want an employee with a conviction record for identity theft to have access to sensitive customer financial data. Or, a company looking for a delivery and installation person who will spend time in customers' homes would certainly not want to hire someone with a history of violent offenses or home burglaries. 

On the other hand, certain offenses might not bear any relation to the job in question. And an arrest record proves nothing: That someone has been arrested for a crime is no proof that they actually committed the charged offense. For this reason, screening out anyone with an arrest record is almost certainly a ticket to the court house, if the result is a disproportionate impact on applicants of a particular race.  

For employers who wish to consider conviction records, the EEOC has provided a three-part test employers can use to make sure that their policy screens out only those who pose an unacceptable risk. The EEOC instructs employers to consider:

  • the nature and gravity of the criminal offense or conduct
  • how much time has passed since the offense or sentence, and
  • the nature of the job (including where it is performed, how much supervision and interaction with others the employee will have, and so on).

If the employer believes the applicant may pose a risk based on these factors, the employer should allow the applicant an opportunity to provide mitigating information demonstrating that he or she shouldn’t be excluded based on the offense. For example, the applicant might show that the criminal record is inaccurate. Or, the applicant might provide facts about what really happened, previous work history, rehabilitation efforts, and so on, in an effort to demonstrate that the record shouldn’t be disqualifying. 

As you can see, the key to avoiding liability for any disparate impact on applicants of particular races is to consider applicants individually, on a case-by-case basis. A blanket policy of tossing any application form on which a particular box is checked doesn't meet this standard. If your company wants to avoid legal trouble -- and make sure it doesn't screen out applicants who might prove to be great employees -- it should change this hiring requirement. 

Make sure your company isn't violating state laws regarding use of arrest and conviction records, either: Select your state from the list in State Laws on Use of Arrests and Convictions in Employment

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