It is admirable that some employers give convicted criminals a second chance by hiring them and helping them become productive citizens.
It is hard to imagine, however, that an employer could face government penalties for declining to hire a criminal. Yet that is the gist of rules spelled out by the U.S. Equal Employment Opportunity Commission.
Under the “Prohibited Employment Policies/Practices” page on the federal agency’s website, it has a category called “Arrest & Conviction.”
An employer may use a conviction as a reason not to hire an applicant “only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when considering the nature of the job, the nature and seriousness of the offense, and the length of time since it occurred,” the rules say.
The EEOC adds, “(U)sing such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups,” so the records “cannot be used in this way.”
Which “protected groups”? Well, the law forbids discrimination based on “race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information,” the EEOC notes. So if, for instance, one race has a higher percentage of convicted criminals than another race, it might suffer a bigger impact from employers who refuse to hire criminals. That, according to the EEOC, is why companies can’t necessarily use a criminal conviction as a reason not to hire someone.
But wait a minute! Those employers aren’t discriminating based on race, but based on proven criminal behavior. If ever there was a legitimate reason not to hire someone, surely that is it! Employers have no way to be sure that a criminal has been rehabilitated. So employers shouldn’t be forced to choose between hiring a potentially dangerous criminal and risking prosecution.
Amy Ridenour, president of the nonpartisan National Center for Public Policy Research, put it well: “Certainly employers should be permitted to hire felons; even applauded when appropriate, but they should not be made to feel they could be asked to defend themselves in court if they do not.”