Do you have a criminal history? An ex-felon perhaps? You’re trying to get a job and finding nothing but brick walls in your path? You are not alone. Between 1.5 and 1.7 million former offender were unemployed according to 2010 statistics, and all indications tell us that things have not improved much since then. If you are trying to get your life back on track but are carrying your criminal history around with you, is finding a decent job simply out of reach?

Why Employers Screen for Criminal History

Employers surveyed report a number of reasons for screening job applicants for criminal convictions:

• In a effort to avoid workplace fraud and theft;
• Due to concerns about workplace violence;
• Fear of liability due to negligence in hiring practices;
• Compliance with state and federal laws.

Criminal History, Race, and National Origin Disparities

While federal law prohibits discrimination based on race, religion, national origin, and other factors, criminal history is not a protected status. That said, the Equal Employment Opportunity Commission recognizes the potential for disparate treatment when employers refuse to hire felons:

• Disparate treatment liability is a potential problem if employers view an applicant’s criminal history differently depending on the national origin or race of the applicant;
• Factually, excluding workers based on a criminal history does have a disparate impact on certain races.

Indicators of Illegal Criminal History Discrimination

Proving discrimination requires the documentation of specific behaviors. If an employer refuses to hire, for example, someone with a criminal record who is a member of a racial minority group, but hires an equivalent applicant who is white, that may be one indicator that discrimination is at work. In fact, if it can be demonstrated that an employer utilizes a practice, such as screening for criminal history, and it has a disparate impact on race or another protected category, the practice itself may be unlawful. Other problems include:

• Biases or stereotypical comments related to race;
• Inconsistent hiring practices with regard to racial minorities;
• Indiscriminate application of the screening process;
• Statistical analysis that reveals discriminatory practices with regard to hiring, promoting, etc.

EEOC Recommended Procedures

To avoid liability, the EEOC provides guidelines to employers who choose to screen for criminal history:

• Conduct an individual assessment of each applicant;
• Tailor screenings narrowly to correspond with job requirements;
• In general, avoid making inquires about criminal history;
• When such inquiries are made, make sure applicants would only be excluded based on job-related factors;
• Keep information about criminal histories confidential.

Government Incentives to Hire Former Offenders

The Federal Bonding Program (FBP) and the Work Opportunity Tax Credit (WOTC) are a couple of incentives available to support employers who hire former offenders. Credits of 25-40 percent of wages earned in the first year are available to employers.

Additionally, California laws are working to protect those with convictions that have been set aside or are sealed (Cal. Lab. Code § 432.7(a)). Additionally, this legislation puts the burden on employers to show that their screening policy is necessary to the job at hand and takes into account several factors:

• Nature and severity of the crime;
• Time passed since the arrest;
• Nature of the job responsibilities.

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