Felony Convictions and the Hiring Process

I had a question posed to me today; ". . is there a problem with stating because of the felony we can not hire them?" In this situation the manager terminated the interview immediately upon learning that the candidate had a criminal history.

What, as an employer, should your practice be? You can refuse to hire such an individual provided you comply with EEOC guidelines regarding consideration of those convictions. The EEOC requires employers to consider three factors:

1. The nature and seriousness of the crime.
2. How long has it been since the conviction?
3. What is the type of job at stake?

Employers should consider the following as a practice: "Affirmative findings will not automatically disqualify an applicant from employment, unless the prior conviction bears some reasonable relationship to the nature of the employment. Conviction records could be cause for rejection if their number, nature, and proximity would cause the applicant to be unsuitable for the position."

The TWC provides some excellent advice for the employers; "EEOC Issues with Background Checks: Basically, EEOC takes the position that because statistical evidence shows that a higher percentage of minorities than non-minorities has had financial or criminal history problems in the past, taking an adverse job action based upon such factors has an disproportionate and unfair impact (in EEOC terms, "disparate impact") upon minorities, and the burden will be on the employer to show a legitimate, job-related reason for taking the adverse job action.

EEOC expects employers, prior to turning someone down for a job or promotion who has had an unfavorable credit or criminal history report, to do an individualized job-relatedness determination. That means that before turning down someone for a job on the basis of a credit report or criminal history problem, the employer must be able to show that it considered the specific problem and determined that it would not be a good idea or prudent course of action to hire that specific person for a particular position."

In closing, ensure that your hiring practices are EEOC compliant!