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Considering a Criminal Record During Hiring

The hiring of individuals with criminal records is a sensitive issue. On one hand, many released convicts have a great deal of talent and exuberance to offer and can contribute significantly in a variety of positions. On the other hand, depending on the type of position and the nature of the conviction, hiring a former convict can present a legitimate risk and create concern among coworkers and customers. Whatever the case may be, it is important for employers to tread carefully when considering whether to hire a former criminal.

In most jurisdictions, refusing to hire an applicant because of a criminal record is not directly illegal. The federal government does not consider this to be actionable discrimination. Moreover, only 10 states have adopted laws that prohibit discrimination based on criminal record. However, there are still several reasons why employers should not be cavalier about refusing to hire based on criminal history:

  • Although federal law does not specifically make a criminal record a basis of prohibited discrimination, the Equal Employment Opportunity Commission (EEOC) has adopted the policy that categorical refusal to hire based on past criminal conviction can constitute indirect racial discrimination.
  • While few jurisdictions prohibit these practices at present, many, including Washington, DC, are considering adopting legislation that would ban discrimination in hiring based on criminal record. In fact, the DC Council is currently considering such a proposal.

Hiring can often be a minefield and even well-meaning employers can easily stumble into allegations of discrimination without skilled legal guidance. An experienced DC area labor and employment attorney can help your company avoid these pitfalls and protect itself against frivolous suits.

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