What is Fair Chance Hiring?
Fair Chance Hiring is an act that offers individuals equal opportunity to secure employment within the United States. Currently, between 70 and 100 million Americans hold some criminal record, varying from misdemeanors to arrests and felony convictions. Regardless of conviction status, these individuals face stigma when trying to find employment or re-enter the workforce after incarceration. Unfortunately, statistics show holding a criminal record reduces employer call-back rates to nearly 50 percent, suggesting a significant bias toward hiring practices.
Fair hiring laws or “ban the box” legislation delays any inquiry into a prospective employee’s criminal history until much later in the employment process. This method allows ex-offenders to present their skills and qualifications without allowing a criminal record to stand in the way of getting hired.
Who Follows Fair Chance Hiring in the United States?
Since introducing Fair Chance Hiring in the United States, 37 states have adopted a fair chance policy for public sector employment. Of these states, fifteen hold extended policies for private jobs too. Recently, support for these policies, laws, and regulations has increased in popularity at local, state, and federal levels. In 2019, the Fair Chance to Compete for Jobs Act prevented federal contractors and agencies from requesting arrest or conviction records from job applicants before offering conditional employment.
Employment Bias with Incarceration
Due to employment bias, previously incarcerated individuals will face the most difficulty finding employment. These people hold the same hopes as anyone else—building a better life for themselves and those they love. This goal becomes highly unattainable when facing employment hurdles, even when trying to re-establish themselves positively.
What is the Fair Chance Act and How Does It Work for Employees?
The Fair Chance Act is a law within the United States prohibiting employers from inquiring about previous convictions until employment qualifications are met and the employer makes a conditional offer of employment. This regulation allows a prospective employee an equal opportunity at the interview stage of hiring.
The Fair Chance Act doesn’t only apply to the interview stage. Companies can’t include any questions about criminal history in job advertisements, applications, or interview processes. The Fair Chance Act relates to the National Defense Authorization Act, passed on December 17, 2019. The primary objective is to help individuals secure employment regardless of history. Unfortunately, this act does not protect positions requiring a background check by law.
Understanding Fair Chance Hiring
Fair chance hiring holds that regardless of background, everyone should receive the same assessment for a role they’re otherwise qualified to fill. When incorporating the basic principles of inclusion, diversity, and equity, many organizations feel justified in discriminating against a large group: justice-impacted and previously incarcerated people.
Unfortunately, a strong correlation exists between previously incarcerated individuals and the impact on racial minority applicants. Statistically, racial minorities hold higher arrests and incarceration histories in the United States. Statistics show that African Americans are incarcerated at more than five times the rate of Caucasians, yet only makeup 32 percent of the general population. By discriminating against criminal history, employers are effectively applying racial bias in their hiring practices.
Impact of Criminal Bias within the Workforce
Applying a bias toward criminal history also impacts racial discrimination within the company. This bias undermines the DEI efforts and adds a compliance issue under Title VII of the Civil Rights Act. Although Title VII doesn’t outwardly protect those with a criminal past, it offers unequivocal guidelines.
What Does Title VII Outline for Hiring
· Barring companies from excluding individuals from a position solely because of an arrest record.
· Employers may not disqualify an applicant solely because of a crime conviction.
· Any disqualification from employment due to a criminal record must be job-related. The history must directly relate to the position and remain consistent with business necessity.
Why the EEOC Holds These Strict Guidelines
The rationale for these guidelines stems from an understanding of bias. The American justice system discriminates against national origin and race. It also recognizes that criminal record databases aren’t always current and frequently contain errors. Finally, the EEOC acknowledges the potential for further racial and ethnic discrimination that often occurs when using criminal records as a basis for hiring.
What are the Requirements for Fair Chance Hiring?
Conditions and requirements for fair chance hiring will depend mainly on what type of business you’re applying to and the jurisdiction. Some laws will only apply to hiring practices within the public sector. Other rules may apply to public and private companies, with exemptions for businesses with fewer than a set number of employees. Most laws will contain the following criteria:
Criminal Background Checks
All employers must consider applicants’ qualifications and skills before requesting a criminal background check. Depending on the jurisdiction, an employer may ask for a background check after establishing you’re in the running for a position. Once the employer determines eligibility, they may administer a background check with a conditional offer of employment. A conditional work offer means you’ll receive the position after completing your background screening.
Recognizing the Nature of the Offense
When your background check reveals previous arrests, convictions, or prior incarceration, an employer must consider the position in question before declining the employment. Any history must directly relate to the job in question, specifically as it relates to the job’s requirements. For example, an employer within the finance sector may reject an applicant with fraud or theft convictions.
Understanding Transparency Requirements
An employer may refuse to hire an individual under specific circumstances. The company must inform the applicant in writing, with particular details, of why the history prevents them from being hired. Many locations with established laws offer special forms to employers that must be followed when informing an applicant. All applicants should be able to address any concerns in writing, offering additional information, or correcting errors in the report.
Any employee facing discrimination for criminal history may apply for civil litigation against the company. The business may face hundreds or thousands of dollars per incident if guilty of violating the Fair Chance Hiring Act.
Conclusion
Every American should receive an equal opportunity to secure meaningful employment within the United States, regardless of their past. Fair Chance Hiring works to remove discrimination and bias from the hiring process to help citizens with past arrests, convictions, or incarceration within the workforce. Although these rules and regulations primarily apply to public sector positions, many states are incorporating this legislation within the private realm over time. Fair Chance hiring helps eliminate bias early on in the application process to confirm the applicants they’re considering are qualified for the position before running a background check.