Many people with arrests and convictions on their records have a difficult time landing a job, especially in a tight job market when employers have the luxury of being choosey.
While some employers are more lenient than others and are willing to evaluate applicants based on their ability to do the work required for the position, there are hiring managers who will not even consider someone with a criminal record.
In most states -- including Pennsylvania -- employers are permitted to ask about or consider arrests that did not lead to conviction.
Currently there is a growing national movement to remove the question, "Have you ever been convicted of a felony or a misdemeanor?" from job applications. "Ban the Box" advocates say they don't want to stop employers from asking about criminal histories and conducting background checks. They only want to give the applicants a fair chance to get past the application stage.
Applicants should have the opportunity to answer questions about their past face-to-face, proponents say, rather than have their application pushed to the side without a chance to explain what happened.
"I believe oftentimes some qualified applicants may have criminal histories. These individuals being blanketly excluded is unfortunate because these prospective employees may bring a skill set that matches what the employer is looking for," said Darrell Graham, director of the Richmond, Va., office of the U.S. Equal Employment Opportunity Commission and a former EEOC judge.
"If you post a job and see an applicant pool, one of the most prudent things you can do is look at the qualifications of the entire applicant pool. Once you select people you feel are qualified, then you can ask those questions on a second round of consideration," he said. "But if you exclude them in the initial screening, it could be disadvantageous to them and the company."
The city of Pittsburgh passed "Ban the Box" legislation in late 2012 and began implementing it as a city policy in February.
"I think council's intent was that people have an opportunity to get an interview and sell themselves on their qualifications," said Judy Hill Finegan, director of personnel and civil service for the city of Pittsburgh. "Individuals now are interviewed based on their eligibility."
During the job interview, she said, the manager gives the applicant a conditional offer. Then the applicant must complete a background release form, a real estate tax release form (for tax payment verification), and a driver's license check form (if a driver's license is required for the job).
"We investigate their background," Ms. Finegan said. "The results are returned to personnel. If it's not clean, I call the hiring manager and we have a conversation about the conviction to determine if the conviction is relevant to the position and if it would hinder them from doing the job.
"We would mutually agree to either hire them or revoke the conditional offer."
She said "Ban the Box" procedures do not apply for positions in public safety, such as police, fire and paramedic jobs. Nor do they apply for Act 33 or Act 34 clearances related to working with children. Background checks for applicants seeking those jobs are completed prior to the city making them a job offer.
Under Pennsylvania's Criminal Record Information Act, employers may consider a prospective employee's convictions only to the extent they relate to the applicant's suitability for the position. The applicant must be notified in writing if he or she was not hired based in whole or part on his criminal history.
According to a 2009 study by the Pew Research Center, African-Americans are overrepresented in the criminal system. Black adults are four times more likely than whites and nearly 2.5 times more likely than Hispanics to be under correctional control. Asking questions about criminal history on applications could have the unintended consequence of causing disparate treatment toward blacks and Hispanics in the workplace.
Mr. Graham said more employers are using background checks than ever before. But use of an individual's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.
Title VII does not prohibit pre-employment inquiries about an applicant's criminal history. Title VII does, however, prohibit "disparate treatment" and "disparate impact" discrimination in the use of the information obtained through such inquiries.
Mr. Graham said he has no data on how many companies continue to ask criminal history questions on applications.
"We all know people make mistakes and this is a nation that believes in second chances," he said. "But we know a fair number of employers engage in this conduct either as a policy or a de facto policy. The actual practices have resulted in people being marginalized and excluded."
Tim Grant: firstname.lastname@example.org or 412-263-1591. First Published October 12, 2013 8:00 PM