Monday, November 7, 2011

Banning Ex-Cons from Jobs: Acceptable Employment Practice or Civil Rights Violation?

More than 90% of all employers conduct criminal background checks on applicants as reported in Michigan Law Journal. While the law does not prohibit an employer from inquiring about or even requiring information on convictions, the way this information is used can still be illegal. Many believe that applicants who have criminal convictions cannot be hired for jobs. This is entirely false. In most cases an outright ban of applicants with criminal convictions will not be upheld in court. An employer cannot use a conviction to bar someone from employment unless the conviction is for a crime that is directly related to the position’s duties. For example, a financial institution may bar individuals with embezzlement convictions from employment. However, they would not be able to justify barring individuals with marijuana possession convictions because it is not directly related to the duties of the position.

While this is not a new issue, as employers have been looking at criminal records for years, it has recently come into the spotlight. The Obama Administration, as part of its Federal Interagency Reentry Council, has made it a goal to end employment discrimination against those with criminal backgrounds who are attempting to reenter society. Also, this past July, the Equal Employment Opportunity Commission (EEOC) held a hearing addressing the issue, considering whether it should re-write its guidelines on employer’s use of criminal records.

Proponents of restricting people with convictions from being hired for jobs argue that what it does is promote safe work safe environments. Everyone wants to work in a safe environment. So what is the problem with prohibiting the employment of people with convictions who may commit more crimes? There are multiple reasons why this practice is problematic. One is that in this tight job market, it is already difficult enough to find jobs, and policies should not create additional barriers to employment. Another reason is that if a criminal conviction occurred many years or even decades ago, it is not a likely determinative of future criminal conduct. Third, is that the detrimental effect on society can be substantial. In the United States 25% of the population has a criminal record. This is a large portion of the population to potentially ban from employment. These people will have trouble earning an income and will likely become public charges since they have no way to support themselves.

However, most importantly, banning the employment of people with criminal convictions violates civil rights. The Department of Labor and other organizations have observed both disparate treatment and disparate impact when investigating this practice. In instances where disparate treatment has been found, employers would ask all applicants whether they have a criminal conviction, however would routinely hire white ex-convicts but not black ex-convicts. This is a violation of civil rights protections because two groups are being treated differently based on what appears to be their race. The other civil rights violation is the creation of disparate impact. The percentage of minority populations that are convicted of crimes is much higher than the percentage of whites. Therefore, if an employer is not accepting applications from individuals that have a criminal conviction, it is more likely they will be eliminating minority applicants.

As our nation works together to come out of this recession, we should make sure that our laws and policies are facilitating growth; especially for citizens who are already struggling. We should not support the restriction of opportunities and violation civil rights.

Bethany J. Peak
Staffer, Criminal Law Brief

Image by Keith Allison


  1. There is a lot to be said about the difficulties of re-entry into society contributing to recidivism rates. Instead, employment could serve as a means to deter criminal conduct.

  2. They have already paid their wrong doing in jail. They should be given new life, help them to have a new life.

  3. An interesting discussion about civil rights. Two thumbs up for your impressive analysis about this topic.