Have You Ever Been Convicted of a Felony?
If you’ve ever applied for a job, you’ve probably been asked this question before. But in many states, this question is going the way of the dodo.
In January 1, 2015, NewHire’s home state of Illinois added its name to the growing list of states with Ban-the-Box; a new legislative practice for employers, Human Resources professionals, and recruiters to be aware of. To put it simply, Ban-the-Box prohibits employers and recruiters alike from asking about a candidate’s criminal background in the early stages of their application. This means that all of the job ads out there with a, “Have you ever been convicted of a felony” question, are now considered unfair or discriminatory.
So what does this mean for hiring processes in 2015? It means that hiring discrimination laws are tightening to keep candidates from being disenfranchised by their past, or their present, and from getting to the future they deserve.
Hiring discrimination is something all HR professionals and recruiters are acutely aware of, but these rules can be full of pitfalls for organizations hiring without the help of professionals.
All of us are aware of the more obvious areas of hiring discrimination, like race, religion, gender, pregnancy, age, disability, or national origin. However, there are plenty of more obscure discriminatory practices that your business may be using without realizing it.
The newest of these anti-discrimination laws, Ban-the-Box is not yet a federally applied law. The National Employment Law Project (NELP) has released an informational packet with a map of states that have cities or counties where Ban-the-Box is in effect for 2015. This law is unfortunately enacted differently in each jurisdiction, however there are some more common applications to aware of when hiring. As mentioned, employers and recruiters can no longer ask questions about prior convictions in the early stages of the application process, but they also can no longer perform background checks at the early stages, which are now legally reserved for finalist candidates. The final most common aspect of Ban-the-Box in effect is that background checks are now only required for some positions. While unfortunately vague, the “some positions” aspect of the law means that you can’t check someone’s credit score unless they are in the final stages of applying for a role that handles money. Fundamentally it moves all background check or history related questions to the end of the hiring process, allowing candidates experience and personality to avoid an early “knock out” for unfair reasons.
The Genetic Information Nondiscrimination Act of 2008
The most recently enacted and federally applicable discrimination law, known by the acronym GINA, ensures that employers cannot obtain or ask for information regarding applicants’ or employees’, or their family members’, genetics or medical records. Patton Boggs details that in the case of EEOC V. Fabricut, Inc., among others, that the EEOC sued the employer for allegedly rescinding an offer of employment after a candidate was found to be predisposed to carpel tunnel syndrome after a medical exam required after an offer, where the candidate had to disclose details of their family’s medical history. A settlement was reached where this candidate received a whopping $50,000 for the unfortunate practices utilized in that specific hiring practice. GINA protects employees and candidates from being discriminated against on private, inconsequential, and even “potential predispositions to” disorders.
Using Social Media to violate the Civil Rights Act of 1964
Social Media allows us to find out an alarming number of things about people we don’t know. While it’s tempting to browse a candidate’s social media profiles to get a sense for their character, businesses have to be sensitive to the fact that information like race, age, gender, religion, and national origin are also available via these platforms. These are all protected categories under the Civil Rights Act of 1964, which dictate the use of any of these (and some other) categories in making hiring decisions as a violation of federal law and are grounds for legal action. If hiring discrimination on these grounds is properly proven, this can be a clear infringement of employee/candidate rights. As Heather Weaver, an attorney with the American Civil Liberties Union, said to the National Journal, “Employers are not allowed to discriminate … whether they do it secretly or openly.”
Arrest Record Discrimination – A less well known and commonly utilized hiring tool
Also covered in Title VII of the Civil Rights Act of 1964 is the inability to make hiring decisions based on arrest records. As is detailed by the EEOC, “The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity.” While it may be tempting to look up your potential candidate’s arrest records – and let’s face it, we’ve all looked up our neighbors – you can incur a hefty charge for such a discriminatory hiring practice, much like in the case of EEOC V. Fabricut, Inc.. However, the EEOC adds, “an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”
To help understand this gray area, let’s take for example, a hypothetical employee called Sean. Sean left work for lunch with friends and had a couple of beers. An officer pulls him over on his way back to work and asks if Sean has been drinking. Sean says, “Why yes, officer, but I’ve only had a couple of beers.” As many of us know, even if you pass a breathalyzer test, but fail the field test (those of us lacking coordination or the ability to say the alphabet backwards will always fail the field test), that you can still be arrested for a DUI. Even if Sean isn’t convicted, the employer knows that Sean has been drinking during work hours against company policy and could inhibit his ability to function on the job so they are able to terminate his employment.
Wrapping Up – A Good Rule of Thumb to Avoid Hiring Discrimination
In all of your recruiting efforts of 2015, be sure to go on the merits of your employees and candidates, not what you can unearth about them through the archives of information on the internet. While conducting background checks is an important step in the recruitment process, you can only use that information to inform a position relevant decision, not an all-encompassing, everyone-that-has-a-record-of-anything-is-out type of decision. Happy Hiring!