Job seekers with felonies still have rights
Johnny C. Taylor Jr., a human-resources expert, is tackling your questions as part of a series for USA TODAY. Taylor is president and CEO of the Society for Human Resource Management, the world’s largest HR professional society.
The questions are submitted by readers, and Taylor’s answers below have been edited for length and clarity.
Question: According to the Equal Employment Opportunity Commission, the decision not to hire a person with a past felony should be job-related. But some companies in the trucking industry are not abiding by this, even though some of them signed the Obama administration’s Fair Chance Business Pledge. For example, a company says that a job candidate’s felony conviction must be more than 10 years old for that candidate to be considered for a position. But when you have a felony conviction from more than 16 years ago and unrelated to driving or the duties of the job, they still deny you. Why are companies allowed to go against federal law? – Anonymous
Johnny C. Taylor Jr.: While it is true the EEOC has suggested that background checks could be discriminatory, federal law does not actually provide protection against someone discriminating against an individual simply because he or she has a criminal record. But there is some good news. When employers evaluate a job candidate’s criminal convictions, they should consider certain factors: whether the conviction is job-related, the nature and gravity of the offense, and how much time has passed since the offense or completion of a prison sentence, according to the EEOC.
So what does this mean for job applicants with past criminal convictions?
A company may have valid reasons for denying employment to an applicant based on his or her past criminal conviction, but if a company rejects a job candidate without considering these factors, it risks a discrimination claim.
Until a discrimination claim is filed, however, it remains only a risk. A job applicant must file an actual discrimination claim against the company to be entitled to relief or a remedy.
As job candidates with criminal backgrounds pursue employment, they should know their rights and discuss their convictions openly with employers when appropriate. Consider this:
❚ Several states have revised their laws on the expunging of criminal convictions. Depending upon the length of time that has passed since a conviction, individuals might be eligible to have their convictions set aside under state law.
❚ Some states and local governments have “ban-the-box” laws, which prohibit an employer from asking about convictions early in the application or interview process. If a state or locality has such a law and an employer asks about convictions, it is violating the law. If you are a job candidate in this situation, you should address it with the employer professionally. Use the opportunity to note that the conviction is not relevant to the position you’re applying for and you would be happy to discuss it at the appropriate time in the hiring process.
❚ The Fair Credit Reporting Act allows job candidates to request a copy of the results of a background check. They can ask for a copy to see what information the employer requested and how far back it looked. If the rejection was based on a conviction listed in the report, the employer must notify the job candidate. This, too, can open a dialogue.
❚ If employers say their policies do not allow for a job candidate with a criminal background to be considered for employment, they should explain how the candidate’s conviction is relevant, given EEOC guidance. While employers are not required to respond to a request for this information, this will at least give the job candidate a chance to explain the conviction and why it should not be considered in the hiring decision.
As I tell CEOs, HR professionals and hiring managers, a criminal background should never be an automatic barrier to employment.
But continued progress will take honest conversations. That means a job candidate may need to pre-emptively raise the issue of a conviction. One way to do this is to appeal to the company based on any public support it has expressed for candidates with criminal backgrounds. Applicants can include in a cover letter, for instance, that they are specifically interested in the company because of its public support and then take the opportunity to explain their situation and how their skills and experiences qualify them for the position.