Negative Credentials: Fair and Effective Consideration of Criminal Records

AuthorStacy A. Hickox,Mark V. Roehling
Date01 June 2013
Published date01 June 2013
DOIhttp://doi.org/10.1111/ablj.12009
Negative Credentials: Fair and
Effective Consideration of
Criminal Records
Stacy A. Hickox* and Mark V. Roehling**
INTRODUCTION
Employers are relying on criminal record information to screen job appli-
cants at increasing rates.1This increase has been attributed to growing
employer concerns about negligent hiring claims as well as technological
advances that have increased the ease and reduced the costs associated
with obtaining criminal record information.2Surprisingly little attention
has been given to the rejection of applicants based on their criminal
records, even though the approach of both employers and courts toward
the reliance on criminal records in employment decisions has important
implications for ex-offenders, organizations, and society at large.
Relying on criminal record information to preclude ex-offenders
from jobs for which they are otherwise qualified directly restricts their
abilities to find employment, a critical need for ex-offenders and a
*Assistant Professor, Michigan State University School of Human Resources & Labor
Relations; J.D. University of Pennsylvania Law School, B.S. Cornell University School of
Industrial & Labor Relations.
**Professor, Michigan State University School of Human Resources & Labor Relations;
J.D. University of Michigan, Ph.D. Michigan State University, B.G.S. University of Michigan.
We greatly appreciate the support for our research from the Michigan State Bar
Foundation.
1See Alfred Blumstein & Kiminori Nakamura, Redemption in the Presence of Widespread
Criminal Background Checks,47C
RIMINOLOGY 327 (2009); SOCY FOR HUMAN RES.MGMT.,
BACKGROUND CHECKING:CONDUCTING CRIMINAL BACKGROUND CHECKS (2010) [hereinafter
SHRM SURVEY], available at http://www.shrm.org/Research/SurveyFindings/Articles/Pages/
BackgroundCheckCriminalChecks.aspx (reporting that 93% of employers surveyed
conduct criminal background checks for at least some positions).
2Blumstein & Nakamura, supra note 1, at 328–29.
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American Business Law Journal
Volume 50, Issue 2, 201–279, Summer 2013
© 2013 The Authors
American Business Law Journal © 2013 Academy of Legal Studies in Business
201
primary predictor of recidivism.3Moreover, some employers’ use of
criminal record information sometimes results in disparate treatment or
disparate impact discrimination that violate ex-offenders’ legal rights.4
For organizations, the failure to use criminal record information fairly
and effectively when making employment decisions may involve the inef-
ficient or “wasteful” use of human resources and expose the organization
to legal liability. In addition, the extent to which employers use criminal
record information fairly and effectively has implications for a number of
societal concerns, including society’s interests in promoting criminal
offender rehabilitation, avoiding recidivism, and promoting equal oppor-
tunities in employment.
Despite the many important implications of how criminal record
information is used in employment decisions, reported cases and other
anecdotal evidence suggest that many employers give inadequate or unin-
formed attention to how they use criminal record information in hiring
and retention decisions. For example, although the 2006 Equal Employ-
ment Opportunity Commission (EEOC) guidelines and the “best practice”
advice of human resources commentators reject blanket policies that bar
the hiring of all ex-offenders,5there is evidence that some employers
continue to adopt policies that bar the hiring of any ex-offenders.6Many
employers also fail to provide clear policies, guidelines, or training relating
to the use of criminal record information in making employment
decisions7and as a result, contribute to the risk that criminal record
3See Sabra Micah Barnett, Commentary, Collateral Sanctions and Civil Disabilities: The Secret
Barrier to TrueSentencing Reform for Legislatures and Sentencing Commissions,55A
LA.L.REV.375,
375 (2004) (noting that sanctions can inhibit reintegration and rehabilitation and can increase
recidivism); Elena Saxonhouse, Note, Unequal Protection: Comparing FormerFelons’ Challenges to
Disenfranchisement and Employment Discrimination,56S
TAN.L.REV. 1597, 1611 (2004).
4See infra Part V (discussing disparate treatment and disparate impact claims for
ex-offenders).
5See, e.g., EEOC, DIRECTIVES TRANSMITTAL NO. 915.003, COMPLIANCE MANUAL § 15-VI(B)(2)
(2006) [hereinafter EEOC COMPLIANCE MANUAL], available at http://www.eeoc.gov/policy/docs/
race-color.pdf; HERBERT G. HENEMAN III ET AL., STAFFING ORGANIZATIONS 408 (7th ed. 2012);
Glynda R. Parker et al., Criminal Records, Social Security, Work Eligibility, HRMAGAZINE, Oct.
2004, at 45, 45.
6See infra Parts IV.A-B (discussing the survey of Michigan employers).
7See infra Part IV.B.
202 Vol. 50 / American Business Law Journal
information will be used inconsistently or “disparately” across different
protected groups.8
The purpose of this article is to promote the fair and effective use of
criminal record information in the making of employment decisions. Many
employers appear to believe that any information about an applicant’s
criminal record is useful in predicting future workplace behavior, and
therefore employers are or should be unconstrained in their use of crimi-
nal information.9However, while in many circumstances some types of
criminal records have obvious relevance in the evaluation of job applicants,
there are also many circumstances in which some types of criminal records
are likely to have very little or no relevance. Moreover, there are societal
and individual interests that need to be balanced against the desire of some
employers to eliminate any and all perceived risk associated with hiring
someone with a criminal record.
Part I addresses the risks associated with hiring ex-offenders and the
need to balance employer, society, and individual interests. Part II identi-
fies and discusses the two primary “fairness and effectiveness” concerns
associated with the use of criminal record information in employment
decision making: consistency and job relatedness. The consideration of the
science of human resource management (HRM), legal theories of employ-
ment discrimination, and available empirical evidence leads to the conclu-
sion that the fair and effective use of criminal record information in
employment decisions first requires that employers use such information
in a consistent manner across all job applicants and employees. Second,
where consideration of criminal record information has the effect of
disproportionately screening out members of a protected group, the
employer must have reasonable evidence that the specific criminal record–
related criterion or standards being applied are job related, taking into
account the job duties and organizational context in question.
Part III reviews empirical research examining employers’ concerns
about hiring ex-offenders and employers’ policies and practices with
regard to the use of criminal record information in employment decisions.
Our review addresses the extent to which available empirical findings
8Employers with fifteen or more employees are prohibited from making employment-related
decisions based on an employee’s race, color, religion, sex, or national origin (42 U.S.C.
§ 2000e-2(a) (2006)), or disability (42 U.S.C. §§ 12101–12214 (2006)). As discussed in this
article, ex-offenders may be discriminated against due to their race, color, or disability.
9See infra Part IV.B, Table2.
2013 / Negative Credentials 203

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