According to the academic journal Justice Quarterly, millions of applicants were asked about a criminal record on a job application. Moreover, virtually all inquiries related to criminal history happen at the application stage. Studies reveal that employers use criminal history information largely for safety reasons, including to combat workplace theft, fraud and violence, plus to mitigate the risk of negligent hiring. While these reasons are understandable, employers should know the implications of asking a job applicant about his or her criminal history.
Where federal law stands
The U.S. Equal Employment Opportunity Commission says, “Federal law does not prohibit employers from asking about your criminal history.” However, employers cannot discriminate when using criminal history to make employment decisions.
For example, Title VII of the Civil Rights Act forbids employers from treating candidates with similar criminal history differently because of their race, gender, national origin or any other Title VII-protected class.
According to the EEOC, employers cannot utilize “policies or practices that screen individuals based on criminal history information” if they greatly disadvantage individuals protected under Title VII, or if they do not help employers accurately determine whether the individual “is likely to be a responsible, reliable, or safe employee.”
Note, as well, that the Fair Credit Reporting Act prohibits employers from obtaining an applicant’s criminal history report without the applicant’s consent.
Ban the box laws
Most states and many local governments have implemented “ban the box” laws, which bar employers from asking about arrests or convictions on the job application or during the initial stages of the screening process.
Late in 2020, the National Employment Law Project reported that 36 states and over 150 cities and counties have adopted ban the box laws. Per the NELP, these laws encourage employers to consider candidates’ qualifications first, “without the stigma of a conviction or arrest record.”
The EEOC suggests that employers remove questions about convictions from the job application. According to the agency, if employers do ask such questions, the questions should be “limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity.”
The EEOC says it believes specific circumstances enable employers to satisfy the “job related and consistent with business necessity” defense. For example, employers can develop targeted screening for considering:
- The nature of the crime.
- How much time has passed since the conviction.
- The nature of the job.
Additionally, employers should perform an “individualized assessment” for each applicant who has been excluded because of the conviction inquiry. The individualized assessment process includes notifying the person that he or she might be excluded due to a past criminal behavior and giving the person a chance to respond to the exclusion.
For more information on the EEOC’s rules and recommendations, see the agency’s guidance.