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Is asking about criminal records discrimination?

Many of our Colorado readers probably know that employers are prohibited from engaging in discriminatory practices on a multitude of factors under federal law. There are also state laws which prohibit employment discrimination. Federal and state laws prohibit discrimination based on race, national origin and religion. There are also laws which prohibit discrimination due to a person's disability, and others which prohibit discrimination based on a person's sexual orientation or political affiliations. But there are some areas where there is a bit more of a gray area. When an employer asks about a criminal background, could that be considered a form of discrimination?

Recently, a Colorado official with the Equal Employment Opportunity Commission took the time to conduct a roundtable discussion with several Colorado employers. The topic of discussion was the various laws protecting employees from discrimination at the hands of their employers, and the use of arrest records in employment decisions was also discussed.

When it comes to screening applicants who happen to have criminal backgrounds, employers are not allow to enforce a blanket rule saying that they will not hire anyone with an arrest record. The recent roundtable discussion indicated that this type of practice would tend to be more prejudicial to minorities if it were allowed.

Employers are allowed to ask applicants about potential criminal records, but the way this information is used is still a nebulous area of employment practice. The bottom line, however, is that employers are prohibited by law from engaging in discriminatory practices, both in terms of job applicants and current employees. When an employer goes against the law and commits an act based on discriminatory practices, the employee may be able to take legal action.

Source: Journal Advocate, "U.S. Equal Employment Opportunity Commission official discusses hiring and criminal records," Callie Jones, Oct. 22, 2012

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