Legal Blog

Seeking a More Diverse Workforce in 2021? Revise Your Criminal Background Check Policy

You may be yelling “welcome” out your company’s windows, but inadvertently locking the doors. Most mid-sized to large companies now have some type of diversity and inclusion initiative. And, they can be very impactful to help companies realize areas for improvement to achieve a more diverse workforce. However, one often overlooked area is a company’s criminal background policy. In the U.S., African Americans and Hispanics represent a combined 32% of the population, however, they represent 56% of the U.S. incarcerated population. Further, the incarceration rate for African-American men is approximately 5.8 times as high as white men, and the incarceration rate for Hispanic men is approximately 2 times as high as white men. Consequently, when this disproportionately high minority population serves their sentences and seeks to return to work, it creates a similarly disproportionate number of minorities with convictions seeking employment.

If companies have criminal background check policies that are neutral on their face but effectively exclude more minorities based on their history of convictions, a company’s criminal background check policy could be an impediment to a more diverse workforce. This potential disparate impact has been an area of interest for the EEOC for quite some time, however, companies may not realize that their policy can also be used as a tool.

For 2021, in addition to your other diversity initiatives, review your criminal background check policy, both for legal compliance and to buttress your D&I initiative. Start with your application and ensure it is compliant with state and local law and what may be included. Even if your state does not prohibit initial questions about convictions, consider whether it is necessary. Further, create both management and employee policies. Your policy for hiring managers should include specific guidance for decisions on rejecting candidates with a conviction. Also, consider providing the candidate an opportunity to discuss their conviction prior to any decisions. Finally, train your decision-makers. They are key in the process.

In addition, there are tax credits and subsidies that employers who employ individuals with convictions may be eligible to receive. For example, the Work Opportunity Tax Credit is a Federal tax credit available to employers for hiring individuals from certain targeted groups, like those with criminal convictions. With the new administration, it is likely this tax credit may be extended and potentially increased.


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