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There are legitimate reasons for employers to be concerned about the criminal backgrounds of potential employees. But in the United States, the goal of the criminal justice system should be reformation over punishment. Numerous studies suggest that iniquities in our system, despite the best efforts of criminal defense attorneys, lead to disproportionate convictions for members of racial minorities. The question of hiring those with criminal records is not just an ethical question, it’s also a legal one. If federal and state nondiscrimination laws are not followed closely, businesses run the risk of losing more than just a potentially good employee. Read on for five guidelines on hiring without consideration for criminal background.

Ban the Box

This policy of removing boxes asking about criminal records from initial applications is actually the law in 18 U.S. states and several municipalities. Even if it isn’t the law where you are hiring, make it your company policy. However, be aware that some studies suggest that hiring officials’ unconscious bias based simply on applicants’ names may lead to unintentional racial and gender discrimination. Consider having another party remove names from applications before your hiring team decides which candidates should move forward in the process.

Consider Only Relevant Criminal Offenses

The Equal Employment Opportunity Commission (EEOC) guidelines stipulate that you cannot refuse to hire a candidate for irrelevant crimes. Someone with a DUI might be inappropriate for a job involving driving, as could someone accused of stealing for a job where they would handle money. But these two candidates would be no less appropriate for each other’s jobs. Generally, committing one kind of crime does not make committing every other kind of crime in the future more likely. It is also inappropriate to consider arrest or court records, only convictions of guilt.

Use a Third-Party Search

Only after a candidate’s application has been approved, the employer should find an experienced Consumer Reporting Agency (CRA) to perform a criminal background check. They should ask the CRA only for relevant, recent, convicted crimes to avoid bias against those with irrelevant offenses. If any offenses are found, they are legally required to inform the candidate of them, and the candidate should be allowed to safely comment on the findings.

Consider Time Since the Conviction

In keeping with the spirit of reformation, employers should consider how long it has been since the candidate was convicted, as well as how they have spent that time. If they have had steady employment since or given back to their communities, that should be considered if their qualifications are otherwise excellent. Even a candidate whose sentence has just ended has already demonstrated improvement, and legally paid for their crime.

Embrace Diversity

If a candidate’s convictions are irrelevant or outdated, consider the unique perspectives someone who has had to face their mistakes so directly can bring to your company. We all make mistakes, and we don’t always get equal retribution for them. Sentencing laws are constantly changing. Somebody convicted for marijuana possession years ago could get a legal prescription today.

 

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