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What is Fair Chance Hiring?

May 24, 2022

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May 24, 2022

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What is Fair Chance Hiring?

Fair Chance Hiring is the practice of treating applicants with a criminal history the same as every other qualified candidate. Fair chance hiring is often synonymous with second chance hiring practices. Simply put, candidates with criminal backgrounds are given a fair chance for job opportunities, or a second chance at entering the workforce. 

What are Fair Chance Hiring Practices?

Following Green v. Missouri Pacific Railroad (1975), where the plaintiff was disqualified from a job opportunity based on his criminal history, the Court branded three Title VII-complaint factors for employers to review when considering whether to exclude a candidate from the applicant pool based on criminal history. These factors, termed the “Green Factors,” are listed by the Equal Employment Opportunity Commission (EEOC) as:

  • “The nature and gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job held or sought.”

The EEOC makes note of a related fair hiring practice, referred to as an “individualized assessment.” This practice entails the employer notifying the applicant that prior criminal history may exclude the applicant from the opportunity, allowing the applicant to provide additional information in relation to the history, and considering that additional information against the nature of the job. 

In essence, an individual assessment asks the employer to consider all relevant information surrounding the individual’s criminal history and if that history is so related to the job sought, that it would prevent the individual from successfully completing the job responsibilities.

Like the elements described in an individualized assessment and the Green Factors, Crimcheck has adopted its own fair chance hiring practices to promote a diverse and open workforce. For internal hiring, Crimcheck evaluates an applicant’s criminal history based on, but not limited to, the following:

  • The position the employee holds or will hold;
  • The nature of the offense(s);
  • The time elapsed since the offenses(s) occurred;
  • The conduct of the employee since the offense(s);
  • Evidence of rehabilitation; and
  • Employment history.

Fair Chance Hiring Laws:

While it is beneficial to adopt your own internal fair chance practices, in some areas it is required by law. These laws are also known as “Fair Chance” and/or “Ban the Box” laws, referring to the check box often seen on applications questioning a candidate’s criminal history. The National Employment Law Project (NELP) reports “37 states, the District of Columbia, and over 150 cities and counties have adopted a ban-the-box (‘fair chance’) policy.” 

For example, New York City adopted the Fair Chance Act which prohibits employers from inquiring about an applicant’s criminal history until after a job applicant offer has been extended. Recently and in similar fashion, The Fair Chance to Compete for Jobs Act of 2019 went into effect on December 20, 2021, prohibiting most federal agencies and contractors from requesting criminal history before a candidate has been conditionally offered a position. These policies affect public employers, private employers, or both, so it is important to know if you fall under one of these umbrellas. 

What are the Benefits of Adopting Fair Chance Hiring Practices?

Fair Chance Hiring promotes diversity and inclusion in the workplace. According to the Court Services and Offender Supervision Agency, one in three American adults has a criminal record. Without implementing fair chance practices, companies are effectively excluding one-third of the workforce and missing out on the opportunity to hire qualified and valuable candidates. Whether motivated by law or the chance to diversify the workplace, adopting fair chance hiring practices can open the applicant pool to the more than 70 million Americans that have a criminal record. 

This information is provided for informational purposes only. Crimcheck does not provide legal advice. Reader retains full responsibility for the use of the information contained herein. State law may vary.

Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

2 Emshwiller, G., 2022. As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime. [online] WSJ. Available at: <https://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime-1408415402>

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