Job Applicants with Misdemeanors: Employer Guidance

Can an employer legally exclude an applicant based on a misdemeanor in their criminal background? At face value, a criminal background is not a protected class – meaning applicants with a criminal background can be discriminated against with no legal recourse. However, doing so may lead to side issues that can create legal challenges.

To address the specific topic of misdemeanors, those are slightly different than convictions because they are typically discovered only through a county background check where the individual was convicted of a misdemeanor. (Source: criminalwatchdoc.com) But regardless of whether the offense was a misdemeanor or a felony, here’s some guidance for employers when navigating around a hit (misdemeanor, felony, conviction, or other) on a background check.

1. First of all, do not ask on a job application whether the applicant has a criminal history. If you’re unfamiliar with the Ban-the-Box campaign, 34 states and 150 cities (as of Apr 4, 2019) have adopted laws that require employers to omit questions about criminal history from job applications to promote a fair chance at employment. If your city/state is not yet on board with this, omit it anyway. This doesn’t mean you can’t inquire about an applicant’s criminal history; just delay it until later in the hiring process.
2. If an applicant has a criminal history, give them the opportunity to explain the circumstances. The EEOC advises employers to allow applicants the chance to share why they should not be excluded from being considered for a job. Not following this advice could lead you to a discrimination lawsuit, particularly when the applicant being rejected falls into a protected class of race, national original, color, sex, religion, disability, age (40+), etc.
3. Never make a hiring decision based on an applicant’s criminal record if the infraction is not related to the job. If a job applicant with a sex offender misdemeanor and/or felony were applying for a teaching position, the company would be justified for not hiring the candidate based on his background because of the obligation to create a safe work environment. However, the same candidate applying for a warehouse position driving a forklift may not be a threat. Instead of automatically rejecting an applicant, consider the job requirements, the level of interaction with customers and coworkers, and the nature of the criminal background.
4. Treat all applicants equally. Per the EEOC, if you don’t run a background check on one applicant but do on another, you may run into discrimination problems if it appears the background check was run based on the applicant’s race, national original, color, sex, religion, disability, age (40+), or other protected class.

Misdemeanors, felonies and convictions should be treated delicately but should rarely be automatic triggers for rejecting a job candidate. For more information or for help with your specific situation, please contact our HR experts at HR@stratus.hr.

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