Ex-Offenders Need Not Apply

• Published date: 01 February 2005
• Date: 01 February 2005
• DOI: 10.1177/1043986204271678
• Subject Matter: Articles

10.1177/1043986204271678
Journal of Contemporary Criminal Justice / February 2005
Harris, Keller / THE CRIMINAL BACKGROUND CHECK
Ex-Offenders Need Not Apply
The Criminal Background Check in Hiring Decisions
PATRICIA M. HARRIS
KIMBERLY S. KELLER
University of Texas at San Antonio
Many legal barriers exist that prevent ex-offenders from obtaining lawful employment, a princi-
ple means for reintegration. This article explores the scope and utility of these laws, which aim
ostensibly to reduce the prospective employee’s likelihood of engaging in workplace crime.
Irrelevance of the provisions to the effective assessment of job applicants’ risks of offending,
shortcomings of criminal background checks, lack of empirical evidence linking ex-offenders to
workplace crime, and the availability of viable alternatives underscore the need to scale back
these significant obstacles to ex-offender reentry. The article concludes with recommendations
for reasonable uses of risk assessment in employment screening laws.
Keywords: criminal background check; employment laws; offenders; risk prediction
Alongstandingconcernamongemployersandlawmakersalikeistherisk
to coworkers and consumers posed by employees with criminal histo-
ries. Most states have enacted various laws that make it difficult, if not impos-
sible, for ex-offenders to acquire employment, regardless of their work his-
tory or risk of reoffending (Legal Action Center, 2004). Although many of
these laws have been in existence for years, obstacles to ex-offenders have
recently proliferated as legislators have expanded the statutory authority of
noncriminal justice agencies and groups to access criminal histories for pur-
poses of employment screening, occupational licensing, and certifications
(SEARCH Group, 2003). Employers’ responses to enhanced access have
been enthusiastic; more than half of the fingerprints sent to the FBI for pro-
cessing in the year ending May 31, 2002, came from noncriminal justice
agencies, up from just 9% in 1993 (SEARCH Group, 2003). These changes
in the law, combined with a greater ease of access afforded by technological
developments, have fed a growing reluctance by employers to hire ex-offend-
Journal of Contemporary Criminal Justice, Vol. 21 No. 1, February 2005 6-30
DOI: 10.1177/1043986204271678
© 2005 Sage Publications
6

---

Harris, Keller / THE CRIMINAL BACKGROUND CHECK
7
ers (Albright & Denq, 1996; Atkinson, Fenster, & Blumberg, 1976; Holzer,
1996).
This article explores the nature, scope, and utility of laws designed to limit
offenders’ access to employment. In the next section, we describe state and
federal provisions governing the use of criminal background checks for job
applicants. We then examine the reliability and validity of these provisions as
measures for the control of workplace crime. We conclude the article with
recommendations for employment screening measures that balance the goals
of workplace risk reduction with offenders’ need for reintegration.
LEGAL BARRIERS TO
EX-OFFENDER EMPLOYMENT
Barriers to ex-offender employment may be direct or indirect. Direct barri-
ers, found in various statutes and occupational code licensing requirements,
require employers to exclude applicants with criminal convictions and, in
some cases, arrest records. Indirect barriers originate in Title VII of the Civil
Rights Act of 1964, which establishes parameters affecting the scope of a
potential employer’s inquiries about prior arrests, convictions, and other
aspects of the applicant’s criminal history. Under Title VII, employers may
exclude applicants with arrest or conviction records if they can prove that the
applicant’s criminal history prevents the latter from satisfying certain job
requirements.
Direct Barriers to Ex-Offender Employment
Employers in many industries are legally compelled to exclude ex-offend-
ers. Some of these regulations exclude ex-offenders outright and do not
require a nexus between the specific professions and the type of offense com-
mitted. These blanket restrictions permanently bar those with any conviction
from entering any job in a specific industry. For example, a number of states
prohibit an ex-offender from obtaining any public employment position. Ex-
offenders are also limited by restrictions in professional licensing codes.
Although some licensing provisions prohibit employment of ex-offenders
convicted of specific offenses, other codes prohibit employment of individu-
als lacking “good moral character.” It is significant that most codes do not
define good moral character, leaving licensing boards and agencies much lat-
itude in determining which criminal backgrounds do not meet this criterion
(May, 1995).
Occupational licensing restrictions are daunting both in number and scope.
A survey by Hunt, Bowers, and Miller (1973) conducted in the early 1970s

---

8
Journal of Contemporary Criminal Justice / February 2005
revealed as many as 1,948 separate statutory and licensing provisions barring
or restricting applicants with arrest or conviction records. Thirty years later,
occupational licensing restrictions have spread to such an extent that they
defy enumeration (Clark, 2004; May, 1995).
Many states have also taken the position that employers should be given
much discretion in making hiring or licensing decisions about applicants
with any form of criminal record. Thirty-eight states permit employers and
licensing agencies to rely on arrests that do not lead to convictions in deter-
mining whether to hire or license (Mukamal & Samuels, 2003).
Of much importance, enactment of a statutory employment or licensing
requirement imputes a duty of care onto employers in the industry governed
by the provision. In some states, an employer’s failure to perform a state-
mandated criminal background check is considered negligence per se in a
negligent hiring case (Mahan v. Am-Guard, Inc., 2003; Mueller by Math v.
Community Consolidated School District 54, 1997). In other states, the fail-
ure is not negligence, per se, but is admissible as some evidence of negligence
(Connes v. Molalla Transport Sys., Inc., 1991).
Congress has followed the states’lead in placing barriers before ex-offend-
ers seeking employment. Along with enacting statutes banning ex-offenders
from certain positions, Congress has also enacted laws indirectly affecting an
ex-offender’s ability to seek and maintain employment. For example, the
Department of Transportation and Related Agencies Appropriations Act of
1993 (P.L. 102-388) requires the revocation or suspension of drivers’licenses
for at least 6 months of any person convicted of a federal drug felony and thus
prevents a large number of ex-offenders from seeking employment where
driving is necessary.
Not all states have joined the trend to construct barriers to ex-offender
employment. For example, Connecticut, New Jersey, and New York have
codified their statewide policies of eradicating discrimination based on crim-
inal records (Scales, 2002). Section 46a-79 of Connecticut’s state code (Con-
necticut Gen. Stat. Ann., 1973) stipulates that
the public is best protected when criminal offenders are rehabilitated and
returned to society prepared to take their places as productive citizens and
that the ability of returned offenders to find meaningful employment is
directly related to their normal functioning in the community.
Wisconsin and Hawaii have gone one step further, enacting “fair employ-
ment laws” that expressly preclude, absent an applicable exception, employ-
ment discrimination based on an arrest or conviction record (Hruz, 2002;
Lau, 2000).1 Yet, it is important to note that the protections afforded by these

---

Harris, Keller / THE CRIMINAL BACKGROUND CHECK
9
statutes govern only those employers not already bound by the exclusionary
requirements of statutory and licensing code regulations.
Indirect Barriers to Ex-Offender Employment
When an employer is not compelled to exclude ex-offenders by statute or
licensing code requirements, the decision to exclude an applicant with a
criminal record is governed by Title VII of the Civil Rights Act of 1964 and
further clarified by the Equal Employment Opportunity Commission’s
(EEOC, 1973) Uniform Guidelines on Employee Selection Procedures. Title
VII and its guidelines prohibit employers from refusing to hire applicants
based on their race, religion, sex, or national origin. It is significant that nei-
ther Title VII nor the EEOC guidelines expressly proscribe discrimination
based on arrest or conviction records; yet, these provisions serve as the pri-
mary legal vehicles on which applicants challenge an employer’s consider-
ation of criminal backgrounds. In bringing a Title VII claim, applicants claim
the employer used the arrest or conviction record to indirectly discriminate
against them by making hiring decisions that “disparately impact” individu-
als falling into the protected classes of race, religion, sex, or national origin.
Applicant’s burden: proving a disparate impact. The burden of demon-
strating the disparate impact rests with the complaining applicant. To carry
this burden, applicants generally rely on three types of statistics, showing (a)
individuals (as a class or in a specific geographical area) are excluded by the
employment condition at a substantially higher rate than other classes; (b) the
employer excludes a greater percentage of individuals of one class than of
other classes on the basis of the employment condition; or...