An Applicant’s Event History- Why Must Criminal Records Be Viewed Differently?

September 10th, 2014

For anyone who has applied for a job, there is an expectation that the prospective employer will want to learn as much about you as possible. The information gathered on a job applicant is an important part of the evaluation process. From the initial gathering of information from a job application, to the personal interview, to the background check, each stage of the process allows the employer to gather key information.

Things such as:

  • Where did the person go to school?
  • What was their Grade Point Average?
  • Did they obtain a degree?
  • Did they belong to any organizations?
  • What is their work history?
  • Did they receive any special awards or recognition?

The answer to any of these questions can be tied to an event or an experience. Employers routinely exercise a great deal of discretion when evaluating these answers. Consider a job applicant who had a poor grade point average. That could certainly be a viable reason for an employer to decide not to hire that applicant; Or consider the applicant who has had many jobs in a short period of time. That too could be a reason for an employer to not hire an individual.

In these types of situations, the denial of employment can be justified by stating that the person was simply not the right fit for their company. The discretion that an employer can use when evaluating this type of information can be very broad. For an applicant who may be denied because of their lack of academic achievement or poor work history, few if any protections beyond anti-discrimination laws would offer any legal protection.

Therefore, it would seemingly be logical that an employer could exercise a similar level of discretion when evaluating a criminal record history on a background check; After all, isn’t a criminal record an “event” in the same context as the event of…going to a certain college? Or working for a company? Or belonging to a trade association?

When a background check indicates a criminal record, the EEOC guidance on criminal background checks requires that an employer must consider a number of factors that include; the facts surrounding the offense, the number of offenses, the age of the person at the time of the offense, prior work history, rehabilitation efforts, any information from character references, and whether the individual would be bonded.

In an effort to help individuals with prior criminal histories re-enter the workforce, the EEOC has constrained employers with guidelines that have impacted the rights of employers to exercise their discretion. Indeed, everyone should have the opportunity to prove that they are worthy of a job, but in the case of an event history evaluation, perhaps that should be done without impacting employer discretion.

Our society has been advanced by numerous laws that protect individuals from discrimination. Characteristics such as race, gender, age, ethnicity and disability have rightly been protected by law. The extension of protections based on an event, however altruistic that it may be, may be an overreach of the law. In a world of employee rights, perhaps we should give some thought to employer rights.

This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.