Like many employers, you may follow a default position of not hiring job seekers who have a past criminal conviction, but such a one-size-fits-all policy can not only get you in trouble with the law, it could also eliminate some excellent candidates from your hiring pool. In this article, labor attorney Siobhan Kelley of the Nonprofits Insurance Alliance Group tells you what you need to create a more nuanced and fair hiring policy regarding criminal background checks and convictions.
Dear Ask Rita,
We have a great candidate for an open position in our nonprofit, but when we did a background check we found out she was convicted of a felony four years ago. We try to be fair by running background checks on every candidate who gets a job offer, and our policy is that no one who has been convicted of a felony can be hired. We would like to make an exception and hire this candidate, but do we then have to make exceptions for other candidates who don’t pass the background check? Signed, Law and Order
Dear Law and Order,
We appreciate your intentions to be fair. But actually, you should be considering exceptions to your policy on criminal convictions. Many employers believe that they have the least risk if they apply the same standards for criminal convictions to all candidates. But the Equal Employment Opportunity Commission (EEOC) disagrees.
The most recent EEOC Guidance explains that, because African American and Hispanic men are arrested and convicted at a higher rate, an ostensibly “fair” policy like yours will actually have a disproportionately negative impact on job candidates of those races. The EEOC has taken aim at policies just like the one you use: “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.”
When a policy or procedure has a disproportionate adverse effect on a protected class, this is referred to as “disparate impact.” A policy may have a disparate impact on members of a protected minority group, even if that policy is neutral on its face, and even if the employer does not intend to illegally discriminate. If a policy or procedure has the effect of disproportionately excluding minority groups, the employer must be able to justify the practice as a business necessity, or it will be considered illegal. The EEOC’s guidance is not law. It explains the EEOC’s position on how it will interpret federal law on discrimination. In this guidance, the EEOC is telling employers they should not automatically refuse to consider an application from someone because they have a criminal record.
So how do employers handle criminal background checks in light of the EEOC guidance? You should be able to show that your practice of excluding certain candidates based on criminal background is job-related and consistent with business necessity. Practically, this means creating an internal procedure for criminal background checks that allows for a two-step process. Your procedure should be documented to show that you have made a “targeted screen” of applicants, and then make an “individualized assessment” of the circumstances. This is starting to get complicated, so let’s look at each of those terms in the context of sample policy language on criminal background checks:
Nonprofit will evaluate a candidate’s criminal history in the context of the job they have applied for, considering factors such as:
The nature and gravity of the crime;
The time elapsed since the offense and/or completion of the sentence; and
The nature of the job.
A conviction for a criminal offense will not necessarily disqualify the candidate. Nonprofit will make an individualized assessment, taking into account at least some of the following factors:
The facts or circumstances surrounding the offense or conduct;
The candidate’s age at the time of conviction (or at the time they were released from prison);
The number of offenses for which the individual was convicted;
Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
The length and consistency of employment history before and after the offense or conduct;
Rehabilitation efforts undertaken since the conviction, including training and education;
Employment or character references for the candidate; and
Whether the individual is bonded under a federal, state, or local bonding program.
In the language above, the first section describes the “targeted screen” and the second section describes the “individualized assessment.” Including such language in your policy will help show that your organization is complying with the EEOC’s guidance.
Employers still have the ability to use discretion when considering applicants with a criminal background. I encourage all nonprofits to conduct background checks for positions which involve direct contact with vulnerable individuals such as children, dependent adults, and people with disabilities. In fact, your state law may prohibit individuals with a criminal history from working with these vulnerable populations – and I encourage you to conduct a criminal background check on any of your employees who have direct contact with minors, developmentally disabled adults, and elderly dependents. In addition, you should consider a criminal background check for people who have access to medications, your organization’s bank accounts, or large amounts of cash. If the check shows the applicant has a conviction, consider it in light of the job requirements. A conviction for driving under the influence might not be a “deal breaker” for someone who will work in your accounting department, but if the job duties include driving then that conviction is a red flag.
The EEOC’s guidance is not meant to force employers to hire convicted criminals, but to encourage employers not to assume that everyone with a criminal record is permanently unemployable. Many nonprofits serve populations more likely to have a criminal record. They often find it helpful to have employees who share that background. For example, a program which mentors troubled youth may find someone who has been incarcerated has a compelling message to share. Many drug and alcohol treatment programs have staff that are themselves in recovery and may have been convicted of a crime in connection with their addiction. I encourage any nonprofit to implement the spirit of the guidance and evaluate each candidate’s background and circumstances in the context of a nexus between the job and the conviction. If the person is the most qualified applicant for the position and there is no nexus to the job, then the fact that the applicant has a criminal conviction should not preclude that person from receiving a job offer.
The EEOC’s guidelines are not law, but they explain how the EEOC interprets, and intends to enforce, federal discrimination law. You can find the EEOC guidance here.
Different types of background checks
This answer only addresses the issue of creating a criminal background check process that will satisfy the EEOC’s guidelines. A previous Blue Avocado article by my colleague Ann Shanklin explains the different types of background checks that are available.
As Ann’s article mentions, there are other important laws that apply to background checks. If you use a third party to conduct a background check, the investigation and the report are subject to the Fair Credit Reporting Act. The FCRA requires the individual authorize the employer to obtain the report, and they must receive the appropriate disclosures. In addition, employers must comply with the requirements of the FCRA if they take adverse action on the basis of the contents of the report, such as deciding not to hire an applicant. The FCRA is enforced by the Federal Trade Commission; their website explains what employers need to know about using consumer reports in employment.
Keep in mind that some states have additional consumer protections which apply to background checks and go beyond the FCRA. These states include California, Maine, Massachusetts, Minnesota, New Jersey, New York, Oklahoma and Washington.
So, Law and Order: consider revising your policy to consider each applicant’s background individually. You might find the business of second chances can pay big rewards.
See also in Blue Avocado:
Criminal Records Checks for Prospective Staff and Volunteers
Court-ordered Community Service: Volunteers or Prison Labor?
Siobhan Kelley is a labor and risk management attorney for the Nonprofits Insurance Alliance Group (NIA Group), which includes the Nonprofits’ Insurance Alliance of California (NIAC) and the Alliance for Nonprofit Insurance (ANI). If either is your insurance carrier, you can obtain advice from Siobhan and the other Ask Rita attorneys at no charge.
Siobhan adamantly denies those rumors that she is wanted by Interpol in France. 🙂