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Criminal History and Discrimination: Assessing Applicants Properly

Date Published: May 11, 2021 | Last Updated:September 15, 2023 | By Jeramy
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Two trends relating to best practices for hiring are on the rise in 2021. First, more firms are using employment background screenings, including criminal history record checks, to protect their organizations from potential risk. Second, responsible business leaders are making efforts to address inequities in their workplaces by purposefully building diverse, equitable workforces.

Components of an Effective and Ethical Background Check Policy

The goal of any background check policy is to make safer, more informed hiring decisions and reduce risk. While there may be additional considerations, such as legal compliance, every justification for pre-employment screenings eventually comes back to safety and security. The key to achieving those goals fairly comes down to having a solid screening policy. Developing a background check policy that is both effective and ethical requires the HR manager to assess candidates, not records. Here are a few things to carefully consider when developing your policy:


One way to give everyone a fair shot at securing a job is to run a background check after determining whether the applicant meets the criteria and is a good fit for your company and the position. It’s a subtle but critical difference. Running a background check at the beginning of the process might eliminate an otherwise qualified individual from consideration; running it at the end allows organizations to consider the criminal activity in light of the requirements of the position.

Ban-the-Box Laws

Historically, many organizations asked applicants to check a box on their employment application indicating whether they had been convicted of any crimes. These “boxes” often served to completely eliminate individuals from contention; HR managers threw away the “yes” applications and only considered further those marked “no.” Giving all candidates an equal opportunity requires assessing their qualifications before asking about their background. Again, the focus is on the candidate, not the record.

Fair Chance

Once it’s been determined a candidate is qualified for the position, it may be necessary to consider their criminal history in compliance with state, local, and federal laws as well as EEOC Guidance. A background check policy establishes a process of evaluating the relevancy of a criminal background based on criteria such as these:

  • How long ago was the offense?
  • How old was the candidate when the offense occurred?
  • How severe was the crime?
  • Has the candidate undertaken any rehabilitation?
  • Is the criminal offense relevant to the position at hand?
  • Is a clean criminal record mandated for the position?

Position-Specific Requirements

Not every position in your organization is created equal and your background check requirements should follow suit. A clear decision tree defined by position is best practice. In addition to including an individualized assessment as mentioned above, It might include criteria such as:

  • Drivers may not have DUIs or moving violations for a defined period of time. They must also maintain a driving history acceptable to your organization and as required by laws and regulations and conduct ongoing checks to confirm.
  • Employees who have direct access to cash or other easily fungible assets may not have a criminal record with recent fraud or theft convictions for a defined period of time, or as required by law
  • IT professionals may have, and maintain, a criminal record free from recent cybercrimes or fraud.
  • “C”-suite professionals should have, and maintain, a criminal history free of offenses that may bring into doubt their integrity and trustworthiness as they are the voice and face of your organization.

These are just a few examples of the ways organizations are choosing to assess criminal records and job eligibility. When the moment comes to consider a candidate’s criminal record, having a clear view of each position helps you do so fairly and consistently.

FCRA Compliance

Fairness is central to the Fair Credit and Reporting Act (FCRA). The FCRA mandates a two-step adverse action process be followed by any organization deciding to make a negative hiring decision based on information gathered during a background check. The first step, and prior to taking any adverse action, is providing the pre-adverse action notice, which allows candidates the opportunity to correct errors on the report and provide any explanations or additional relevant information. The second step, the final adverse action notice, is taken once the decision not to hire, or any other adverse action, is made. Both these steps provide ample opportunities for conversation and correction. They also ensure that candidates receive copies of their background reports and understand what actions have been taken and why. The need to provide this information also serves as a detriment against inadvertent discrimination.

Ethical Hiring Benefits Both Sides

Experience shows that fair hiring practices benefit all parties. Firms that are able to institute fair hiring practices that include onboarding individuals with criminal records report the following benefits:

  • High retention rates
  • Lower rates of misconduct
  • Lower turnover costs
  • Higher engagement
  • Greater empathy
  • Creative problem solving

The list of advantages could go on and on.

What’s the best place to begin? Start by having a conversation about these issues at the highest levels. Bringing leadership on board is the best way to make lasting, tangible changes. Then take your efforts to the next level by getting HR and your legal team involved to build a process designed to find and hire the best possible talent for your organization from all walks of life.

Take the time to appreciate and evaluate the individual in front of you. Hiring is always a risk; use criminal record background checks to mitigate that risk. But do it fairly with an eye focused on the candidate, their experience, their skills, and their fit with your company. Informed, fair decisions will protect your business and help it grow. Having a well-documented, carefully crafted policy helps you make those informed decisions while being fair to all applicants.

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