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Improving Inclusion and Mitigating Bias in Hiring

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A check of criminal records is one of the most fundamental components of a background check.

And, according to the Professional Background Screening Association, 94% of employers conduct some form of background screening.


Criminal record data may include arrests, warrants, convictions, sex offender registry, traffic violations, felonies, misdemeanors, inmate records, probation and parole records, and even penalties and fines. Many people assume that criminal record data is an accurate representation of criminal events, but this is not the reality.

Criminal justice data starts from the time an individual is apprehended by a law enforcement officer. What happens when the law enforcement officer is unconsciously biased or blatantly racist? What are the repercussions of officers enforcing laws rooted in systemic racism? As the result of racial profiling and discriminatory policies, people of color — especially Black males — are far more likely to have arrest and conviction records than Whites. Blacks make up 13% of the population, but they account for 28% of all arrests and 40% of incarcerations. Blacks are more likely to be arrested and convicted of crimes; they are incarcerated at almost six times the rate of White males.

Black men have been the primary victims of mass incarceration due to the war on drugs over the last three decades. Although rates of drug use and selling are comparable across racial and ethnic groups, Blacks and Latinos are far more likely to be criminalized for drug law violations than Whites. In fact, 57% of those incarcerated in prison for drug offenses are either Black or Latino. Approximately 20% of inmates are locked up for a drug-related offense. American views on drugs have evolved greatly in recent years. The public is becoming more supportive of cannabis legalization and drug decriminalization. As a result, more states are voting to relax drug laws.

Due to mass incarceration, today, one in four Americans has a criminal record. Many of those records are for arrests that did not lead to convictions or are for non-violent offenses, such as drug possession. Yet, many background screening practices continue to punish anyone with a criminal record. Securing stable employment after spending time in prison is extremely difficult. Those with a criminal record are unemployed at a rate of 27%. This is well above the U.S. unemployment rate at any point in history. The perpetual stigma of incarceration creates a counterproductive system of release and poverty, hurting the formerly incarcerated, employers, taxpayers and society.

Individuals who were incarcerated for non-violent offenses or have served their time undergoing “correction” deserve a fair chance to become productive members of society. Business professionals involved in screening and hiring decisions can improve diversity and inclusion by giving all job candidates, including the formerly incarcerated, a fair chance. Employers can begin to mitigate bias in the candidate screening process by taking some concrete steps:

  • Ban the Box. 36 states have adopted “ban the box” laws to ensure that a job candidate’s qualifications are considered first, without the stigma of a criminal record. Employers can ban the box, even when not legally obligated to do so.
  • Background screen for the position. Create position-specific screening criteria to limit the types and age of records that are reviewed. By working with a background screening partner, employers can ensure they only see records that matter for the position being filled.
  • Eliminate blanket policies that exclude hiring persons with a criminal record. Unless businesses operate in a regulated environment that prevents hiring those with criminal records, employers can be more inclusive by excluding arrest records and dismissed court cases from the screening process.
  • Conduct an individualized assessment. Employers should follow EEOC guidelines for an individualized assessment when examining an applicant’s criminal history: Inform the individual that they may be excluded because of past criminal conduct; provide the individual an opportunity to demonstrate that the exclusion does not apply; and consider whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

By being thoughtful about background screening protocols and practicing an individualized approach to administering policies, employers can reduce barriers to employment for the formerly incarcerated and give these citizens a fair chance towards become contributing members of society.

About the Author

Krisy Bucher Bio Image

Krisy Bucher is a senior director, marketing programs at Appriss Insights.

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