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Job applicants: criminal records and employment discrimination

Government policy has supported the idea that employers who make hiring decisions based on a person's criminal record might be illegally discriminating against the applicant. Many small businesses, however, still do not know that there is anything wrong with using criminal records in the hiring process.

Indiana employees may want to know that the Equal Employment Opportunity Commission recently announced stricter guidelines to prevent employers from ruling out applicants with criminal records. Doing so can inadvertently result in serious employment discrimination.

While the EEOC has issued past enforcement guidelines about how employers may use criminal records, the new policy requires companies to establish procedures to show they are not using criminal records to discriminate by race or national origin.

If you follow this blog, you know that it is illegal to treat someone differently on the basis of race or national origin or to engage in practices that disproportionately harm racial or ethnic groups protected by the law. Certain ethnic groups may be more likely to be arrested and convicted of crimes and the Civil Rights Act serves to ensure that this disparity is not compounded in the workplace.

An employer may still be able to exclude a job applicant because of their criminal record as long as the reasoning for the exclusion is consistent with a business necessity. The EEOC recommends that employers consider the type of crime, the time elapsed since the incident and the nature of the job.

Even so, an employer should have a dialogue with the individual, and give the person an opportunity to provide a response to the fact that the criminal history makes them unable to do the job.

Source: The New York Times "U.S. Push on Illegal Bias Against Hiring Those With Criminal Records," Robb Mandelbaum, June 20, 2012

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