Should you have a “no hire” policy for criminal convictions?

No.   This short answer stems from federal laws prohibiting discrimination in employment which are monitored and enforced by the Equal Employment Opportunity Commission (EEOC).   From 1964 to 2011 beginning with the Equal Pay Act of ’63 and Title VII of the Civil Rights Act in 1964 to the Genetic Information Nondiscrimination Act of 2008, federal laws state it is illegal to base employment decisions on the following criteria:  age, sex, race, color, religion, marital status, medical condition (including disabilities or recovering addiction), and taking of family care or medical leaves.

Since the commencement of the Civil Rights Act in 1964 through 2011, this above list has expanded to include arrest and conviction records as well and even possibly employment status.   In 1987, the EEOC issued “Policy Statements” that said denying candidates employment on the basis of conviction records has an adverse impact of African Americans and/or Hispanics (as these groups statically show higher conviction rates).  Thus, the policy is unlawful “in the absence of a justifying business necessity.”  Proving “business necessity” would include showing a direct relation of the nature and severity of the offense, time since conviction and/or completion of sentence to the nature of the job in question.

A subsequent 1990 “Guidance Dealing with Arrest Records” reiterated that “using arrests as a disqualifying criteria can only be justified where it appears that the applicant actually engages in the conduction for which he/she was arrested and that conduct is job related.”  Arrests are obviously not convictions and should be treated differently.   A 2011 EEOC opinion letter stated that in disqualifying applicants based on criminal convictions, the conduct should be “recent enough’ and “sufficiently job-related to be predictive of performance in the position sought, give its duties and responsibilities. “

In summary, Title VII of the 1964 Civil Rights Act and subsequent opinions issued by the EEOC prohibit the use of arrest and conviction records for the purposes of employment when not relevant to the job since they can limit the prospects of employment to  any of the aforementioned protected groups or classes.  If you have questions about your policies or would like more information, please reach out to me at info@bluechipbackgrounds.com .

The EEOC is very active – their latest, July 2017 case brought against a Florida janitorial service can be seen and read here: https://www.eeoc.gov/eeoc/newsroom/release/7-5-17.cfm.

Source:  L.S. Rosen, The Safe Hiring Manual 2nd Edition 2012

Should you have a “no hire” policy for criminal convictions?