What can an employer consider about my criminal history?

Under the law, an employer SHOULD evaluate you as an individual, and should consider the circumstances of your criminal history, as well as any progress that you have made since the offense.

To conduct an individual assessment of you as a job applicant/ employee, the employer should abide by these rules:[1978]

    Never make a permanent exclusion or “blanket ban” of people with criminal records. See PG. 589 above for more information on blanket bans.
    Consider the following 3 factors to determine whether a specific conviction may be relevant to the job:
    The nature and seriousness of the conviction.
    The “nature” of the crime includes things like: the harm caused by the crime, and the legal elements of a crime—such as violence, theft, or fraud. The “seriousness” of the crime would include, for example, consideration that misdemeanors may be less severe than felonies.
    How much time has passed since the conviction, conduct, or completion of the sentence.
    Again, there should be no permanent exclusions of people with criminal records.
    The employer should understand that the risk of recidivism decreases over time.
    The nature of the job that you are seeking—including the specific duties and responsibilities of the job.
    The job title and nature of duties (e.g., data entry, lifting boxes);
    The job’s essential or most important functions;
    The circumstances under which the job is performed (e.g., the level of supervision, oversight, and the amount of agency the employee has);
    The environment in which the job’s duties are performed (e.g., outside, in a warehouse, or in a private home).
    Look at individual factors like:
    The total number of convictions on your record;
    Your age at the time of conviction or release from prison;
    Evidence that you did the same type of work after your conviction (with the same or a different employer) with no known incidents of criminal conduct;
    The length and consistency of your employment history before and after the offense or conduct;
    Evidence of your rehabilitation and efforts to change—for example, education/training;
    Mistakes in your criminal record;
    Mitigating facts or circumstances surrounding the offense or conduct (mitigating facts are things that show your crime should be considered in a less harsh light; for example, if you were the victim of abuse or coercion at the time of the offense);
    Personal and professional references who can talk about your employment record and character, and any other information regarding your fitness for a particular job; and
    Whether you are bonded under a federal, state, or local bonding program.[1979]
  1. 1978

    42 U.S.C. § 2000e-2; EEOC Guidance at 15; see also Green v. Missouri Pac. R.R., 549 F.2d 1158 (8th Cir. 1975). The employer should develop a targeted screening process that considers at least the following 3 factors: the nature and seriousness of the crime; time elapsed since the crime; and the nature of the job sought (nature of the duties and essential functions, circumstances under which the job is performed such as level of supervision and amount of authority, and the environment in which the job is performed considering location and context).

  2. 1979

    EEOC Enforcement Guidance at § V(B)(9).