Whether or whether a candidate has ever been convicted of a felony is a frequent question on employment applications. Any offense, usually one of a serious nature, that carries a minimum sentence of one year in prison is considered a felony.
On job applications, felons must disclose whether or not they have been convicted of a crime.
Because of this, employers could decide not to recruit them. Felons can apply for jobs and are legally allowed to work in many different capacities, but whether or not they are recruited depends on various conditions.
Is Discriminating Against Felons Legal?
According to the Civil Rights Act of 1964, it is illegal to discriminate against potential or current employees based on various personal traits. Race, religion, nationality, gender, sex, ethnicity, or national origin are these declared qualities.
However, having a criminal record does not always imply something about the person. The “green” elements, which the EEOC mandates employers take into account, are the character and seriousness of the illegal conduct, the amount of time that has passed since the illegal conduct happened, and the character of the employment being sought.
When evaluating a convicted criminal for employment, the type of crime committed is crucial. It would be appropriate not to hire a convicted elder abuser to care for the elderly, a former bank robber to work as a bank teller, or a white-collar criminal to have direct access to a company’s most sensitive and important financial accounts.
However, the applicant may have a stronger case for discrimination if the conviction is unrelated to the employment.
When two similarly situated persons are treated differently by an employer to discriminate on one of the aforementioned grounds, this is known as disparate treatment. For instance, a company may hire Caucasian people with criminal convictions but not African-Americans with the same convictions.
Demonstrating Unequal Treatment
You can prove that an employer treats two people based on a protected trait differently. For instance, the employer might use language that undermines the protected status of a certain group or feeds preconceptions about that group.
Showing that the hiring process is inconsistent—for example, by requesting that people of a given nationality or race submit to a criminal background check but not those of a different nationality or race—is another approach to demonstrate unequal treatment.
Suppose the company has recruited someone from one specific ethnic origin who has a comparable criminal history but not someone from a different ethnic background who has the same type of criminal history. In that case, that is another important piece of information to know.
It is more likely that discrimination based on felony convictions will involve disparate impact than differential treatment.
Employers do not need to intend to discriminate for disparate impact to exist. Instead, it focuses on whether an otherwise neutral employment policy ultimately affects one group more than others in a disproportionate way.
This practice is prohibited if the employment practice that causes this effect is unrelated to the position and is inconsistent with business necessity.
For instance, a company might have a general policy prohibiting hiring anyone with a felony conviction. Because some ethnic groups’ conviction rates are higher than those of other groups, having such a policy in place may result in removing more members of those ethnic groups.
Job-Related and Consistent with the Demands of the Business
The employer must demonstrate that the employment practice that caused the disparate impact is relevant to the position and compatible with business necessity if an applicant has established disparate impact.
This implies that the employer must demonstrate a connection between the employment practice and the specific job-related skills required for success.
The nature and seriousness of the charge that resulted in a conviction, the amount of time that has passed since the offense occurred or the sentence was served, and the nature of the job being sought after are all factors that courts may consider when deciding whether a policy is job-related and consistent with business necessity.
The concern is whether the employer’s actions may show that the applicant poses an unacceptable amount of danger compared to other applicants, according to one circuit.
According to the Equal Employment Opportunity Commission, there are two ways for employers to pass the job-related test to avoid responsibility under Title VII for disparate impact. The first is by validating the criminal conduct screen depending on the position the applicant is applying to, utilizing the uniform guidelines standards.
The second is whether the employer has a screening procedure that enables them to assess the nature of the offense, the amount of time since conviction or release, and the position’s requirements.
Additionally, in the second scenario, the employer must assess each candidate individually to ascertain whether the employment practice being used against them is relevant to their job and consistent with business needs.
More stringent laws than the federal regulations have been enacted in some states. These states may outlaw the use of candidates’ criminal history by public, private, or both types of employers.
Additional Employment Factors to Consider
When making employment decisions, employers should also consider the length of time since the conviction and the nature of the infraction, and how it relates to the duties of the position.
Candidates are not required to disclose offenses that occurred more than a specific number of years before applying for a post in several states, such as New York. Long-ago convictions might not be as significant as convictions from more recent times.
Federally or state-level laws prevent convicts from working in specific industries. Financial services, insurance, healthcare, and real estate are frequently forbidden businesses. If you were convicted of a felony, you are also prohibited from working as an attorney, teacher, psychologist, or in any other license-required profession.
The president or governor, as appropriate, may commute state or federal convictions. Pardons can undo a conviction, a prison sentence, or any associated repercussions, such as fewer job chances.
Can I Get a Felony Status Reversed?
A felony can be expunged from your record, and your record can be sealed. Crimes against minors, sex felonies, and violent crimes frequently cannot be removed from records.
All fines must be paid, and all requirements linked to the crime must be satisfied for the court to consider expungement. A crime will be expunged from public records, but not necessarily all traces of it will be lost if someone is conducting a background check for a job. Contact a lawyer if you have questions about how a felony might affect your criminal record and your legal rights.
Do I Need an Attorney?
A discrimination lawyer should be consulted if you believe you have been subjected to discrimination due to your criminal record to learn about your possibilities. A lawyer can represent you in court and assist you in presenting the strongest possible defense.
You can find the right lawyer for your felony employment needs by using LegalMatch. Your attorney can provide you with the proper legal advice and guidance you need for your particular legal issue and case. If any disputes arise, your lawyer can help you pursue the appropriate remedy under criminal laws.