Can an employer have a policy that excludes applicants who committed certain specific crimes?

Maybe. If an employment policy excludes ALL applicants who committed a certain crime (for example, theft), the employer must show that anyone who committed that crime can’t do the job properly or creates too much risk of harm in the position.[1977]

  1. 1977

    The employer should validate the exclusion for the position in light of the Uniform Guidelines on Employee Selection Procedures. In other words, it should show data or analysis about criminal conduct as related to subsequent work performance or behaviors that supports the exclusion. EEOC Enforcement Guidance at § V(B)(5); see also El v. Se. Penn. Transp. Auth. (SEPTA), 479 F.3d 232, 244-48 (3d Cir. 2007) (stating that employer’s hiring policy for applicants with criminal convictions must “accurately distinguish between applicants that pose an unacceptable level of risk and those that do not”).