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Employer's Guide to Discrimination: Hiring and Managing Employees with Criminal Records

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Employer's Guide to Discrimination: Hiring and Managing Employees with Criminal Records

By NicoleD
Published: September 10, 2009 Updated: February 18, 2011

There is no federal law that directly prohibits employment discrimination based on a criminal record, but the U.S. Equal EmploymentOpportunity Commission (EEOC) and some courts have ruled that discrimination based on a criminal record can be a form of race discrimination, and a violation of Title VII of the Civil RightsAct of 1964. The EEOC states that nationally, some racial groups are convicted in numbers which are disproportionate to other groups, and barring people from employment based on their conviction records will have a disproportionate impact on people of color.

Background Checks and Interviews
Depending on state law, employers may or may not be permitted to ask job applicants/employees about their prior arrests or convictions. Check with your local EEOC office for the laws inyour area.
In some states, such as Wisconsin,an employer may ask if an applicant has any pending
charges or convictions, as long as it is clear that the reply will only be considered if the offenses are substantially related to the job. Check your state law to determine the extent
to which employers are allowed to ask about or consider criminal records when making adverse employment decisions, such as the refusal to hire or promote employees based on their criminal record. 
Generally, employers should only ask questions which are relevant to the employment decision. Many states have specifically prohibited or advised against pre-employment inquiries in their fair employment laws due to the possible misuse of this information. 
Employers can access background checks through their local courts, state repository, or through credit reporting agencies that do criminal background checks. 

Arrest Records
The EEOC rules that the use of arrest records as an absolute bar to employment
has an unequal impact on some protected groups, and as a result, employers cannot exclude applicants based solely on their arrest record.
If the charges alleged in the arrest record are related to the job, the employer should evaluate whether the arrest record reflects the applicant's conduct. The EEOC recommends that an employer should offer the applicant or employee an opportunity to explain, and,
if he or she denies the charges, make the follow-up inquiries to determine credibility. 

Conviction Records
According to the EEOC, conviction records are ‘reliable evidence' that a person engaged in the alleged conduct,since the justice system requires the proof beyond a reasonable doubt for a conviction. In contrast, arrests alone are not reliable evidence that a person has actually committed a crime. 

It's unlikely that an employer will be able to justify broad general inquiries about an employee's or applicant's arrests. However, employers may exclude employees with criminal records from employment opportunities if a business necessity exists, essentially, if the employee or applicant's conduct indicates unsuitability for the position. 
A business necessity is commonly cited if the conduct for which the applicant/employee was arrested is job-related and relatively recent. 
Both states and the federal government have regulations that limit the employment opportunities for some people with criminal records, making it harder (or impossible) to get certain occupation certifications. This exception is common in the healthcare industry, and some others, including jobs that involve working children. In some cases, these restrictions
can be appealed if the applicant shows evidence of rehabilitation. 
For more information on discrimination, see Business.gov's Employment Discrimination and Harassment portal.

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Message Edited by NicoleD on 09-17-2009 12:11 PM
Message Edited by ChristineL on 11-30-2009 02:27 PM

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Summitdefense - We're glad that you found this helpful and thanks for sharing some more details about the process in California!
This is a helpful article for both employers and employees. As an employer, I find it confusing to know what you can and can't ask of potential employees. I work for a law firm that helps people clear their criminal record. If you live in California and have a criminal record, you should know that it is one of the states that has a law wihch prevents employers from seeking criminal records from a potential employee who has expunged his or her conviction. If you are a jobseeker and have an old conviction, but have stayed out of trouble since, you should look into getting your record expunged. It's not an automatic process, so you have to fill out the relevant paperwork and petition the court to make it happen. If you are looking to clear San Francisco criminal records, you can contact Summit Defense Law Offices for help. Message Edited by NicoleD on 12-15-2009 09:52 AM

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