off therecord











Mar 03, 2017

Considering Criminal History in Pre-Employment Decisions

By: Allison Mann

Many companies in North Dakota are hiring right now. Comprehensive background checks are often performed as part of the hiring process, and the criminal history of an applicant is a potentially relevant factor. For example, a company that specializes in the protection of confidential personal information likely does not want to hire someone that has recently been convicted of identity theft.

However, employers must be careful when using past criminal behavior as a justification for not hiring an applicant. The Equal Employment Opportunity Commission (EEOC) has made it clear that it considers certain employment decisions based on past criminal behavior discriminatory.

Enforcement Standards:

Title VII of the Civil Rights Act, prohibits discrimination on the basis of race, color, religion, sex, or national origin. Discrimination on the basis of criminal history is not directly actionable under Title VII. However, employment screening based on past criminal behavior becomes actionable when it is used in a way that causes discrimination based on a protected factor. There are two theories generally used by the EEOC to show actionable discrimination in these circumstances: (1) disparate treatment; and (2) disparate impact.

    1. Disparate Treatment. This is found where two job candidates with similar qualifications are treated differently based on a protected characteristic. In sum, this happens when an employer uses an applicant’s criminal history as an excuse to illegally discriminate. This is best demonstrated by an example. Tom, who is white, and Jerry, an African American, are both applying for the same job. Both of these candidates have similar educational backgrounds and work experience. However, each also has a prior conviction for possession of marijuana on their record. The interviewer denies Jerry, an African-American, a position at the company, and explains that the decision was based on his past conviction. However, the interviewer decides to overlook Tom’s conviction, and offers him the job. This inconsistency demonstrates reasonable cause for the EEOC to believe that illegal discrimination occurred.

    2. Disparate Impact. This occurs when a neutral employment policy disproportionately negatively affects a protected class without a proper business justification. An example of such a policy is one that categorically excludes any individual with a criminal background from employment. There is data indicating that arrest and incarceration are disproportionately high for African American and Hispanic men. It is the EEOC’s position that such a policy, or even one that only excludes certain criminal behavior, can have a negative impact on applicants of these backgrounds.

Additional evidence that may be used to add credence to one of the above theories includes biased statements of individuals involved in the hiring process, inconsistencies in the hiring process, and other statistical evidence.

In Practice:

When hiring, an employer must make all decisions based on the qualifications of the applicants and the applicant’s suitability for the position. Rarely should employers categorically refuse to hire applicants with a criminal history. Instead, employers should engage in an analytical process that analyzes the needs of the position, and balances it with potential risks of hiring an individual with a specific criminal background. A hiring manager should consider each of the following when reviewing an applicant’s criminal history:

    • The type of criminal record. This includes differentiating between an arrests and a conviction.
    • The type of offense, including whether it is drug related, a violent crime, includes theft, or is a crime of moral turpitude.
    • The severity of the offense, including whether the applicant was charged with a misdemeanor or a felony, and whether they were sentenced to prison time or probation.
    • The time that has passed since the offense. Analyzing recidivism rates may be instructive.
    • The nature of the job sought. Determine what type of criminal conduct will preclude fitness for performance.
This assessment should be undertaken for each applicant. In addition, an employer should provide any applicant with a criminal history the opportunity to explain the situation and provide potentially mitigating information. In the event an employer chooses to not hire an individual with a criminal record, the employer must be able to show that this decision was based upon job related factors and is consistent with business necessity.

These are just a few general guidelines for compliance with federal law. An employer should consult with competent legal counsel in the event that a specific issue arises.

Our Interest in Serving You:

My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at We promise to take your comments and ideas to heart.

(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the March, 2017 Southwest Area Human Resource Association newsletter.