2. The Problem: Over-Use of Criminal Records in Hiring
Each year, millions of individuals are released from prisons and jails and return to their communities
with high hopes of turning their lives around. One of the first and most important steps to reentering
the community is getting a stable job. Unfortunately, many citizens returning to the community find
out quickly how hard it is to get hired when the job application asks about a criminal record. Without a
stable job, it is nearly impossible to find steady housing or to be able to support a family. Barriers to
jobs negatively affect the entire community, not just the individual.
According to a 2012 poll of the Society of Human Resources Management, 92 percent of employers
now use criminal background checks when hiring workers. Since African Americans are
disproportionally involved in the criminal justice system, this
has an especially devastating impact on communities of color.
While background checks are not bad in themselves,
employers often use background checks to screen out all
people with records, even if the crime they committed was a
long time ago and has nothing to do with the job. For example,
a person convicted of a drug offense when they were young
should not be automatically excluded from getting a job supervising clerical staff many years later. By
excluding all people with criminal convictions from getting a job, employers are not helping to make
communities any stronger or safer.
The EEOC Guidance
Employers are using criminal screens at unprecedented levels. This tends to place an unfair burden on
African American and Hispanic communities, which are disproportionately caught up in the criminal
justice system. Therefore, an employer’s use of an individual’s criminal history in making employment
decisions may, in some instances, violate the prohibition against employment discrimination enacted
by Congress in Title VII of the Civil Rights Act of 1964.
In 2012, the agency that enforces federal employment anti-discrimination laws, the Equal Employment
Opportunity Commission (“EEOC”), released recommendations for employers to follow when using
criminal background checks. Many employers are unaware that these updated recommendations exist.
With the help of other members of your community, taking this information to employers can not only
help them avoid liability under the law, but can also open doors for individuals who may have
experienced unfair exclusion from jobs.
Considering that African Americans and Latinos are more likely to be arrested than whites, more likely
to be charged once arrested, and more likely to be convicted and incarcerated when charged, it is
important for employers to be aware of this updated guidance, both to assure fairness for minority job
seekers and for employers to avoid Title VII liability. These straightforward recommendations
encourage practical hiring policies-policies you can feel comfortable encouraging an employer to use:
Individualized Assessment that considers at least the nature of the crime, time since the
criminal conduct occurred, and the nature of the job in question
Arrest Records Without Conviction should not be used to deny employment, in the
absence of evidence of underlying conduct indicating unsuitability for the particular job.
No Lifetime Bans and No Blanket Screens. Criminal history is irrelevant if the person has
lived for years without another conviction or if the crime is not truly related to the job.
Returning to the community from jail or prison is
a complex and difficult transition, and
unemployment is one of the greatest barriers to
successful re-entry.
3. Best Practices for Using Criminal Records in Hiring
The Lawyers’ Committee has collaborated with other civil rights organizations to issue a special report
that provides practical steps that employers can follow to comply with the Guidance. The idea behind
the Best Practices is simple: Both employers and their employees will benefit when employers look at
the actual experience and qualifications of job applicants and make hiring decisions based on
experience and qualifications. Everyone loses when employers let stereotypes about risks prevent
them from hiring qualified applicants just because they were previously convicted of a crime.
Employers need to think sensibly about risk, but if the misconduct involved in a prior crime has little to
do with the job and the crime was years ago, the applicant’s work experience and qualifications usually
tells the employer much more about the applicant than the prior conviction does. The full report can
be found at bestpracticestandards.lawyerscommittee.org
Keys to Best Practices
There are lots of details in the Best Practices report, but the key ideas for employers to follow are
simple: (1) Do not ask about criminal history on the application; wait until you have decided which
candidates to interview. (2) Rely only on conviction records; do not penalize someone for an arrest.
(3) Do not use a blanket screen for all convictions, but consider what convictions for criminal conduct
are reasonably related to the situation of the job the employer is filling; also, limit the length of time
that a conviction will be considered, since the longer the applicant has been living peaceably in the
community, the less likely the past crime indicates any risk today. (4) Do not use a background
screening company that reports only from online databases; get reports from original records. (5) The
applicant should have a chance to challenge the report and to provide evidence of rehabilitation.
4. The Three “R’s”
One way to think about the EEOC Guidance and the Best Practices is to keep in mind the “three R’s.” You
should encourage the employer to consider the three “R’s” before rejecting a job applicant based on the
criminal history of an applicant/employee by asking these questions.
Do the risks associated with job in question require a criminal background
check?
If so, what specific convictions are relevant to the job in question?
Is it rational to take adverse action based on conviction that occurred a
long time ago, before the applicant demonstrated substantial
rehabilitation?
You are not asking employers to stop using criminal background checks
altogether. Criminal background checks are an important and necessary aspect of hiring policies for
certain positions, such as work with vulnerable groups (elderly, children, etc.).
Instead, you are asking employers to consider the risks that arise from the nature of the job before
screening applicants. This is called a “relevance screen,” and is one of the central recommendations of
the EEOC Guidance.
Getting Involved: What You Can Do
If unfair hiring policies are affecting your community, take action! Policy-makers are beginning to
understand how unfair and counter-productive it is that punishment for past mistakes continues well
after a person returns to the community.
There are things that you can do right now to help end unfair hiring practices. First, start with your own
network of friends, family and coworkers, or with a church or other local community organization.
1. Ask questions! If you are employed, ask your employer what their hiring policies are regarding
criminal background checks. You may be surprised by the answer. If you believe that policy unfairly
screens out people with criminal records, contact us at lawyerscommittee.org/contact/
2. Tell us your story. If you believe an employer has discriminated against you due to your race and/or
the information in your criminal history, call us at (888) 324-7578 or visit the Lawyers' Committee Web
site and complete an intake questionnaire by going to http://www.lawyerscommittee.org/contact/intake
3. Talk to friends and family! Even if this is an issue that does not touch you personally, you are likely to
know someone who has been affected. Ask them to share their experience looking for a job, and how it
has impacted other parts of their life.
4. LEARN! The best way to keep the conversation going is by educating yourself on the problems that
exist in your community, and what if anything is being done to fix them. Share your knowledge with
others.
5. Get organized! Organize people who have been affected by unfair hiring policies and/or are interested
in learning more. Host a house meeting to share experiences, resources and knowledge; build a support
system.
It’s important for employers to re-
member that millions of workers with
prior convictions have turned their
lives around and become productive
members of society.
5. Approaching an Employer
Approaching an employer can be intimidating. However, it is important to keep in mind that many
employers are unaware of this 2012 Guidance. By relaying this information, you are not only helping
members of your community get a fair shot at a job, but are minimizing the employers’ liability risks.
Once you have identified employers in your community whose hiring practices could be improved,
see if a hiring manager or human resources staffer would be willing to meet with you individually or
along with other members of the community.
By letting employers know that this is an important issue and by alerting them about their responsi-
bilities given the recent EEOC Guidance, you are putting the necessary pressure on employers to
change the way they unfairly use criminal background checks to screen out qualified individuals.
"Reentry provides a major opportunity to reduce recidivism, save
taxpayer dollars, and make our communities safer.”
—Attorney General Eric Holder,
The Federal Interagency Reentry Council
6. Presenting Fair Hiring Practices to the Employer
A basic agenda for meeting with an employer might look like this:
1. Identify yourself as a member of the community (do you represent an organization?) and explain
why you are concerned. Share the statistics listed on the Facts (next page).
2. Ask the employer representatives what their current hiring policies are, and if they are familiar
with the updated EEOC Guidance.
3. Whether or not they know the Guidance, ask what the employer’s policies are about each of
these areas, which are addressed in recommendations in the Guidance:
Do they ask about criminal history on the job application?
Do they consider whether the risks associated with a job require a criminal background check?
Do they reject applicants based on arrests that did not result in a conviction?
Do they consider what specific convictions are relevant to the job in question?
Do they consider whether the applicant has demonstrated substantial rehabilitation before
rejecting an applicant based on a conviction that occurred years before?
Do they insist on a background report based on original records, not just online databases?
Do they give applicants a chance to dispute a reported record and to show rehabilitation?
4. Explain how their current policies hurt members of your community, and how common-sense
changes could really have a big impact. Probe employers about any blanket exclusions for people
with criminal convictions exist, and what purpose those exclusions serve.
5. Explain that both the employer and many deserving members of the community would benefit
from the employer’s giving individualized consideration to rehabilitation, including employment in
the same job since conviction without problems arising, other successful employment, stable family
ties, and getting and staying clean and sober.
6. Ask the employer if it would be willing to reevaluate its practices, especially in light of the EEOC
Guidance. If other employers in your community have more reasonable policies, use those policies
as examples.
7. Leave a Best Practices Report with the person you meet with, and your contact information in
case they have any further questions. Thank them for their time, and follow up to see if they have
given your recommendations any more consideration.
7. Recently more evidence concerning the appalling racial
disparities present in our criminal justice system have become
available, and some were highlighted in the EEOC guidance:
Incarceration rates have increased 7x since 1974; the U.S.
is now the world’s leading jailer.
African Americans make up about 13% of the U.S.
population, but 39% of prison and jail inmates.
African Americans and Hispanics are arrested at a rate
that is 2 -3x their proportion of the general population.
1 in 17 white men are expected to serve time in prison
during their lifetime; in contrast, that number is 1 in 6 for
Hispanic men; and 1 in 3 for African American men.
Blacks are 4x more likely to be arrested based on drug
charges, though the frequency of drug use is about the
same for all ethnic groups.
2/3 of those released from incarceration each year have
served time for non-violent property or drug offenses.
