could face liability for negligent hiring. Of course, such an analysis would consider the same factors that an employer should be weighing in any event when considering the background of a justice-involved individual. LEGAL GUIDELINES Second-chance employers should consider the following steps when weighing the hiring of justice-involved individuals:
Please consult your counsel if you have any questions about employment law. COMPLIANCE As with other hiring decisions, there are boundaries placed on employers when hiring individuals with a background in the justice system. The Equal Employment Opportunity Commission and the Fair Credit Reporting Act provide resources and guidance when making hiring decisions.
These resources should be utilized to maximize opportunities and foster an inclusive environment. Equal Employment Opportunity Commission (EEOC) The EEOC has long taken the position that the use of an individual’s criminal history may result in prohibited discrimination based upon race and national origin under Title VII of the Civil Rights Act of 1964. Discrimination could occur if an employer utilizes criminal conviction history against only certain individuals based on their race or national origin. However, the EEOC
•Know your
parameters. Do federal and/or state regulations place particular limits on hiring for positions in your industry?
•Train recruiters and hiring managers. All
individuals involved in considering the impact of prior criminal history on hiring should understand how both the legal parameters and the company’s own values impact these decisions.
•Make individualized decisions, weighing the nature and gravity of the offense(s), the time that has passed since the conviction and/or the individual’s release from incarceration, the nature of the job held or sought, and applicable state and federal statutes and regulations. Avoid considering prior arrests
goes further to point out that a neutral policy of excluding certain applicants based upon criminal conviction history may also be unlawful if it results in a disparate impact on individuals protected under Title VII. Therefore, the EEOC requires employers to establish that the exclusion of individuals with criminal convictions must be job related and consistent with business necessity. Employers should conduct an individualized assessment to determine whether the conviction would be disqualifying. Employers should consider: 1) the nature and gravity of the offense or conduct; 2) the time that has passed since the offense, conduct and/or completion of the sentence; and 3) the nature of the job held or sought. The EEOC guidance states that conducting an individualized assessment will reduce the likelihood disparate impact discrimination will
(unless recent), which were not followed by convictions, and dismissed charges. Carefully consider whether expunged records should be included as a factor in hiring decisions.
•Whether a successful hire or not, treat each hired justice-involved individual as an individual, avoiding assumptions about this group as a whole based on singular experiences.
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