Post by Michael M. Berzowski
Although there is no federal law that directly prohibits employment discrimination based upon criminal records, the EEOC and some courts are of the view that discrimination based upon a criminal record can be a form of race discrimination and a violation of Title X of the Civil Rights Act of 1964 since some racial groups are convicted in numbers that are disproportionate to other groups and, therefore, the argument goes: barring people from employment based on their conviction records will have a disproportionate impact on people of color.
This is not an academic subject. According to the US Department of Justice, there are more than 64 million Americans who have a criminal record that might or might not have resulted in a conviction. The chances are greater than not that you will come across such an individual. The trick will be to adhere to various standards in considering hiring people with criminal records which should provide a balance in maintaining a level of safety at work and hiring competent and talented employees who might not otherwise have had employment opportunities.
A safe approach is to determine whether there is a reasonable and direct relationship between the crime and the job with a direct correlation not being a good match. Similarly, it would be a good idea to be on guard for all violent crimes, regardless of the circumstances since someone prone to assault and battery or reckless driving or negligence charges, for example, might not differentiate between work and non-work environments.
Finally, you should consider how much time has passed between the conviction and the date of the work application, as well as any rehabilitation that may have taken place and the applicant’s previous work history.
If you have a rule that automatically discards any applicant with a criminal record, now would be a good time to consider changing it.