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What happens when employers make commitments to maintain a safe work environment and hire people from the communities in which they operate businesses, which likely include members with criminal backgrounds? Over 6.5 million adults have an immediate family member in jail or prison, but it is one of those silent facts that people do not talk about. It can be a tricky space to navigate, but it is possible to remain compliant with the law and uphold the desire to hire individuals with diverse backgrounds within the community.  

There are over 2 million Americans imprisoned at any given moment for various severity levels of crimes. Many of these individuals have employment history before, during, and after imprisonment, often possessing employer-sought-after skills or the potential to fill a much-needed talent gap due to multiple years of grueling high turnover in several industries.   

Employers must put measures in place to keep their employees safe. One of the tools most employers utilize to make that happen is pre-employment screenings that include a criminal background check. Luckily, excellent businesses can efficiently provide that data for employers, including criminal background, education, etc. But what happens next? Employers are then left to make a critical decision when there are red flags in those background check results.  

The EEOC clearly states that employers should not have a policy or practice that excludes people with criminal records that disadvantage certain races or other characteristics prohibited by law. These types of decisions cause a disparate impact and are not job-related and consistent with business necessity, which is illegal. It should be no secret by now that African Americans are hugely disproportionately incarcerated at higher rates than other races. When employers choose to have blanket policies or inflexible practices that prohibit employment for criminal background checks, they automatically set themselves up for creating disparate impact against African Americans and negatively impacting the community that they vowed to serve.  

"To combat potential discriminatory practices, several companies have moved to what is commonly referred to as “banning the box’ in which background checks are not run until after a selection decision is made."

To combat potential discriminatory practices, several companies have moved to what is commonly referred to as “banning the box’ in which background checks are not run until after a selection decision is made. This allows for decision makers to solely consider the applicant’s qualifications without the influential knowledge of any potential background check flags, which may or may not even be job-related.  

It was personally an interesting experience witnessing the internal conflict of managers who were huge fans of candidates and could not wait to have them on their team. Moments later, they struggle with their emotions after discovering that the candidate had a criminal background. These conversations and decisions can be difficult, especially if the criminal record is a sensitive one. It can be difficult to maintain an objective point of view, separating your personal opinion from a business decision, and ultimately, that is the right thing to do. 

Adding another layer of complication, employers are often concerned about how they will manage backlash when other employees become aware of another employee’s criminal background that they may personally have concerns with.

After speaking with candidates, I’ve learned over the years that what is in black and white on the pre-employment screening does not give you the whole story. A personal story: my husband once hired an employee who was clearly highly intelligent, talented, with excellent credentials, and was also a registered sex offender. He was very forthcoming during the interview and explained the situation, noting that he had been turned down for numerous jobs. He had been involved in a romantic relationship with a teenage classmate whose parents did not approve of their relationship, mainly because they were of different races – he was African American, and she was Caucasian. Those two teenagers soon after got married and had three children, but that fact could not change his sex offender status. 

This candidate went on to be very successful, leading a large department as a vice president at a national company. The couple appreciated my husband so much that they named one of their children after him, which is one of the greatest compliments you can give. I didn’t even do that, and I’m married to him!

So how can companies avoid discrimination, protect their employees, and support their communities by employing the full diversity of their population?  

• Implement a centralized background check review process in which the decision-makers know the applicable laws and the company’s policies and practices. The great thing about centralized reviewers is they become familiar with criminal background check language and can efficiently make decisions that align with the company’s values.

• Ban the box to allow a fair and consistent practice of selecting candidates before garnering any information regarding a criminal background.  

• Have strong onboarding tools in place so there is clarity for all employees on what your policies and expectations are.  

• Partner with Second Chance programs in local communities that specifically work with those impacted by incarceration and offer programs, training, etc., to support those individuals.

• Educate your teams on the company’s policies and stance. Put it out there and remove the shame.