Rethinking Criminal Background Screening: A Win-Win


A common preliminary question on many job applications asks applicants whether or not they’ve ever been convicted of a crime. While these questions certainly wouldn’t say so explicitly, checking “yes” is a generally a surety of not moving forward in the hiring process. At first glance, this might seem logical and even fair. What employer would want to hire a criminal?


The problem is that the practice of excluding all candidates with a prior criminal conviction uses an extremely broad brush that not only excludes great candidates, but disproportionately excludes certain groups in particular.


The Problem With Casting a Broad Brush


First, let’s consider the broad-brush problem. In a 2015 report, the Brennan Center for Justice outlined some surprising American crime statistics. For example, the report states that there are as many Americans with criminal records as with college degrees, and by the time they turn 23 years old, nearly one-in-three Americans will be arrested. Now, not everyone who is arrested is ultimately convicted, and not every conviction is for a serious crime like murder, rape or robbery. Misdemeanors like underage drinking, possession of marijuana, trespassing and noise violations are all crimes. Even someone convicted of one of these relatively minor offenses decades ago would be excluded by policies that prohibit hiring anyone with a criminal record.


Moreover, that broad brush tends to impact people of color more than others. For example, while Blacks and Hispanics make up less than one third of the U.S. population, they make up over half of the population of those incarcerated in American jails and prisons.


Implications for Disparate Impact


Many state and local governments recognize the disparate impact of requesting criminal history on job applications, leading to many states enacting “ban the box” legislation. According to Nolo, 13 states and the District of Colombia ban private employers from asking about criminal history on a job application, and 30 prohibit government employers from doing so. The laws vary, but generally allow looking into criminal history further along the process.


The intention isn’t to ignore criminal history but to avoid using it for immediate disqualification.


It’s certainly understandable that employers would be concerned about the criminal history of job applicants when making hiring decisions. Employees with a history of certain criminal conduct might be more prone to steal from the business, harm other employees or commit other bad acts while representing the organization.


But, the widespread disqualification of such applicants also lumps in millions of candidates who may have had only a minor run-in with the law years ago and are otherwise great fits. The fact that this group is disproportionately made up of people of color also means companies taking this broad-brush approach may be inadvertently harming their diversity and inclusion goals.

Instead, companies should strive to focus disqualifications on only relevant or serious criminal offenses and otherwise consider criminal history as one of many factors in a holistic hiring process.

Fair chance hiring laws are cropping up in many states and municipalities as a means of proactively addressing the potential negative implications of ban-the-box practices. Where does your state stand?


Some organizations are also taking a stand and banding together to adopt their own ban-the-box policies, including well-known brands like Starbucks, Facebook, Walmart and Target, according to Goodhire.


Where does your organization stand?

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