Toward True Fair-Chance Hiring: Balancing Stakeholder Interests and Reality in Regulating Criminal Background Checks

Note - Volume 94 - Issue 1

Background checks often lead employers to discriminate against ex-offenders by giving these applicants lesser consideration, or even throwing out their applications altogether. But although ex-offenders are more likely to recidivate, there is little or no evidence that they will “act out” on the job, especially where their criminal record is unrelated to the job duties for the position sought. Additionally, recidivism rates drop significantly within just a few years of release. On the other hand, knowledge of certain crimes might be valuable to employers.

In his Note, Mr. Petersen argues that a balance between these two interests can be struck. Specifically, he urges using a four-part framework to regulate the use of criminal records in employment. His proposed system enables a firm to examine a candidate’s entire criminal record, thereby protecting them from various legal claims and risks, while simultaneously diminishing the chance of prejudice due to unrelated crimes. Mr. Petersen concludes by assessing the current federal approach and local / state approaches. He finds that current approaches are fundamentally inadequate, and that ban the box policies, while widely adopted and largely useful, could be improved with his proposed system.

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