Stop Asking Applicants About Their Criminal History

01/08/2021
Stop Asking Applicants About Their Criminal History

Depending on your company and location, you might still be asking job applicants whether or not they’ve ever been convicted of a crime. But a growing number of human resource experts are advising against this—or at least, advising against asking about criminal history early on in the application process. So why is this, and when is the right time to consider criminal history?

What the law says

According to the U.S. Equal Employment Opportunity Commission, Title VII of the Civil Rights Act:

  • Prohibits employers from treating candidates or employees with similar criminal records differently based on race, gender, religion, national origin, or any other Title VII-protected characteristic
  • Prohibits employers from using criminal history screening policies or practices if:
    • They significantly disadvantage Title VII-protected individuals
    • They don’t help the employer accurately determine whether or not the person is likely to be a reliable, responsible, or safe employee

When do employers need to know about criminal history up front?

In some regulated industries such as financial services, healthcare, or transportation, employers need to know up front whether or not a candidate has a criminal conviction that would prevent them from being hired. In these instances, it’s only logical to include a question about criminal history on an initial job application.

Why should you stop asking?

According to the Society for Human Resources Management, 59 percent of employers disqualify five percent or fewer candidates based on a past criminal conviction, 14 percent eliminate 20 percent or more applicants from consideration, and 67 percent would continue with a candidate and give them the opportunity to explain their record. In other words, most employers are open to at least considering candidates with a criminal record.

On top of that, in 2012, the EEOC advised employers to remove questions about criminal history from job applications. Why? Most likely because any conviction will come to light later on in the process, when employers are in a better position to assess a candidate’s skills and fit for the job and weigh it against a record.

When is the right time to consider criminal history?

Of course, it’s still important to know whether or not a candidate has a criminal record in order to ensure a safe work environment, to protect customers or clients, and to protect the company. But this question is best left until after you have made an offer and are running a background check.

If, at this point, something comes to light that could lead to you rescinding the offer, it’s advisable to conduct an individualized assessment, as the EEOC states. This provides the candidate with the opportunity to explain the circumstances of the conviction and why it will not prevent them from performing properly and responsibly in the position they want. Then you can take the shared information under consideration and make a decision accordingly.

The takeaway

Having a criminal record shouldn’t automatically exclude someone from being considered as a candidate—unless the record pertains directly to behavior that could violate your industry’s regulations. By waiting until after making an offer to run a background check and allowing the candidate to explain themself, you can open your company up to more talent, while at the same time giving them the opportunity to move past their criminal history.

 

Source:

https://www.eeoc.gov/pre-employment-inquiries-and-arrest-conviction

https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/ban-the-box-criminal-history-job-applications.aspx

https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions#VIII

 

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