Civil Disabilities in An Era of Diminishing Privacy: A Disability Approach for the Use of Criminal Records in Hiring

Authors

Andrew Elmore, Boston University School of LawFollow

Document Type

Article

Publication Date

Summer 2015

ISSN

0011-7188

Publisher

DePaul University College of Law

Language

en-US

Abstract

An evaluation of normative and legal frameworks to encourage the employment of people with criminal convictions is in order. While current approaches are likely to eliminate overbroad initial hiring screens, there remains the unfinished project of reintegrating persons with criminal convictions into the workforce. For this, policy tools are needed to discourage the misuse of irrelevant criminal convictions and to encourage a contextualized evaluation of criminal convictions and the fair consideration of applicants’ qualifications separate from them.

This Article proposes a disability normative and legal framework as a useful approach to guide this analysis. Disability laws first consider the privacy interests implicated in medical inquiries. If a medical inquiry has little relevance in employment and is likely to be misused or misinterpreted, it may be shielded on privacy grounds. If medical inquiries are potentially relevant, then the procedural and substantive protections codified in the ADA serve the mutually supportive goals of debiasing employers predisposed to reject qualified applicants and encouraging contextualized evaluations of them. Applied to criminal records, ADA protections would guide a contextualized evaluation of an applicant’s qualifications for the job, and of the workplace risk presented by a criminal conviction. As with some medical information, however, procedural and nexus protections alone may be insufficient to dissuade employers from denying applicants based on minor, distant convictions that do not present a workplace risk. This is particularly true given the lack of objective information about the predictive force of a past conviction. A disability approach would prohibit the use of irrelevant criminal convictions by sealing or expunging them. This approach is consistent with disability norms and would counteract the pervasive assumption that any criminal background is always an unreasonable risk to persons or property, particularly when the applicant is African-American.

This Article proceeds in five parts. Part I briefly summarizes the key features of a disability normative and legal framework that apply to hiring screens, taking personality tests and genetic screens as examples. It also introduces the analogy of criminal records as a civil disability in need of disability privacy and equal opportunity protections. Part II describes the growth of criminal record history as a dominant negative credential in hiring, and the impact of overbroad criminal record hiring screens in reducing employment opportunities for people with criminal records, particularly those who are African-American. Part III discusses the ways in which federal, state, and local governments have responded to the increasing use of civil disabilities as negative markers in employment applications. It then evaluates these regimes, finding that Title VII disparate impact challenges often face insurmountable litigation hurdles, and that many state protections apply a vague “reasonableness” standard to apply criminal record screens. It also finds that procedural protections in some jurisdictions do not go far enough in ensuring an individualized assessment of candidates, that there are few privacy protections, and that those protections that do exist are often easily evaded. Part IV proposes a disability framework that would restrict employer access to long-ago and minor convictions that do not predict future behavior by sealing or expunging these records, while permitting employers to review the criminal records of conditional employees that may predict future behavior, and to reject those conditional employees who present a genuine risk that cannot be accommodated. Part V addresses potential criticisms of this approach—namely, that limiting criminal record inquiries will perversely increase discrimination against African-Americans and that privacy protections will not succeed in restricting employer access to civil disabilities.

Recommended Citation

Andrew Elmore, Civil Disabilities in An Era of Diminishing Privacy: A Disability Approach for the Use of Criminal Records in Hiring , in 64 DePaul Law Review 991 (2015).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/4000