How Should Potential Employees’ Criminal Record be Considered?

It is increasingly difficult for potential employees to find job positions after they have been arrested or convicted of a crime. According to the U.S. Equal Employment Opportunities Commission, Title VII of the Civil Rights Act of 1964 defines parameters of the hiring process to avoid discrimination, including whether to conduct a criminal background check and how to weigh those applicants who have an arrest or conviction record. Title VII of the Civil Rights Act of 1964 prohibits employers to discriminate based on an applicant’s race, color, natural origin, sex, or religion. It is important to adhere to these guidelines in order to be an equal opportunity employer.

If an employer checks the criminal background of a potential employee, it is important for the employer to understand the difference between an arrest record and a conviction record. Title VII stresses that an arrest is not dispositive of actual criminal behavior. The American justice system treats those accused of crimes as innocent until proven guilty in a court of law, and so employers should not consider an arrest as evidence the potential employee committed the alleged acts.
However, in the case of a conviction, it is permissible for the employer to consider the potential employee as having actually carried out the acts convicted of. This can work against potential employees because convictions do not entirely equate to the person having committed the crime. In a court of law, a plea deal carries the same meaning of conviction as if the defendant went through a trial and was convicted. There have been many times when a defendant has pled to a lower charge to avoid the threat of a more serious conviction after a trial, or where the defendant does not understand the process and feels they have no choice but to accept a plea deal, or is unable to afford the time or money in proceeding to trial. Therefore, it is possible for applicants to be refused a position whether they actually committed the crime or not.
Title VII encourages an employer to conduct an “individualized assessment” of a potential employee. A suggested screening process is to look at the nature of the conviction, when it occurred in relation to the criminal background check, and the type of job the applicant is being considered for. There are times when the conviction record can be solely relied on in making the hiring decision, and this can even extend to underlying behavior in an arrest record if the employer feels the alleged behavior makes the applicant “unfit” for the specific position.
If a potential employee’s criminal record is considered as a factor in whether to hire or not, the employer should inform the applicant during the interviewing process. If you are an individual with an arrest or conviction record, an experienced employment attorney can help you in approaching potential employers and how to handle criminal background checks. If you are an employer, an experienced employment attorney can help you understand Title VII better, and how to go about the hiring process when interviewing applicants with arrest or conviction records. For these and other employment law concerns, please contact employment attorney Steven Mitchell Sack at 917-371-8000.

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