Denying employment to job applicants with criminal backgrounds can be considered illegal discrimination if employers do not consider laws and guidelines, both state and federal.
State legal restrictions
State laws vary significantly regarding the use of criminal background to determine employment eligibility.
Some states protect those with backgrounds during applications for business licenses, which can be a huge barrier to employment. For example, Arizona protects those applying for licenses from discrimination based on their record unless their offense has a reasonable relationship to the occupation.
Other states block companies from asking about certain types of records, commonly expunged records or arrests that did not lead to convictions. California and Massachusetts prevent employers from asking about other kinds of records; California restricts certain marijuana offenses and Massachusetts blocks some first-time traffic and alcohol violations.
Hawaii takes it a step further, requiring that employers do not ask about an applicant’s record until giving them a conditional offer of employment.
Alabama, Alaska, Arkansas, Idaho, Iowa, Louisiana, Maine, New Mexico, North Dakota, South Dakota, Tennessee, Utah and West Virginia do not have any protections for applicants with criminal records.
A full list of state laws regarding hiring those with criminal records can be found here.
Applications of Title VII
Beyond state laws that directly protect people with criminal records during the employment process, a 2012 guidance added to Title VII of the Civil Rights Act has shed light on the federal legality of restricting applicants based on criminal background.
The issue is that blocking applicants based on their past offenses can often have a disproportionate impact on minorities, which is prohibited under Title VII, even if the employer did not have the intention of impacting minorities.
How employers can avoid discrimination
State and federal laws do not stop employers from asking about criminal records altogether. Rather, they prevent employers from completely blocking applicants based on record without considering other factors, such as whether the offense would have an effect on job performance or how long ago the offense occurred.
To ask about record during the employment process in a legal way, employers must meet all requirements for state laws and comply with Title VII by ensuring that policies for criminal-record inquiries are job-related and necessary to business.
In order to do this, employers must either prove that there is data or analysis about the relationship between the criminal conduct and work performance and behaviors or develop a policy that considers the nature of the crime, the time elapsed and the nature of the job. Individual screenings are not required, but they are helpful.
There are a variety of state laws with which employers must comply, and Title VII establishes guidelines for employers to avoid opening themselves up to a discrimination lawsuit. It’s important for employers to keep in mind how excluding those with offenses that would not affect their job performance — and how they can be disproportionately impacting minorities — when making hiring decisions.
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