I would get out and for the first few weeks I would … try and get a job, but obviously with a criminal record, if you were honest and said, yes, I´ve got a criminal record, then, there’s the door basically.
Quoted from Social Exclusion Unit (SEU) (2002, p. 52).
Abstract
Employers’ access to and use of criminal records as a selection mechanism in the labor market makes it far more difficult for ex-offenders to find jobs, especially regular, well-paid jobs, than those without criminal convictions. The paper asks whether there is anything morally problematic about this practice. The aims of the paper are twofold. First, arguments based on premises of wrongful discrimination against the current, commonest use of criminal records are critically discussed. It is argued that employers do not necessarily engage in morally wrongful discrimination against job applicants when they use criminal records in recruitment screening, but it is also argued that ex-offenders who apply for jobs are subject to what can be called “structural and morally wrongful discrimination” when laws allow employers to request (or directly access) a job applicant’s full criminal record. Second, preliminary proposals on how criminal records can be used by employers in a way that avoids wrongful structural discrimination of ex-offenders will be presented and critically assessed. I suggest that it should be lawful for an employer to access an applicant’s criminal records only where there is a relevant and special match or link between the crime on the records and the job being applied for and the crime is serious. This proposal is defended against two objections, one based on concerns about crime prevention and the other based on the employer’s interest in knowing whom not to hire.
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Notes
The phrase ‘the current, and commonest, use of criminal records in the labor market’ covers, roughly speaking, both a direct and an indirect infrastructure. In some countries (e.g., the US) employers can obtain direct access to applicants’ criminal records by consulting the federal crime bureau without asking the applicant in question. All states in the US have made it possible to search for sex offenders by name or residence; information about sex offenders is available on-line and will usually include offenders’ names, addresses, photos and offences. For further detail on access to criminal records, see Jacobs and Crepet (2008, pp. 203–208). In Denmark, employers only have indirect access to this information, in the sense that they must ask applicants or get signed and informed consent from them, in order to obtain access to the records, which are held in custody by the police.
In what follows, I will refer to ‘discrimination’ rather than ‘morally wrongful discrimination’ for the sake of brevity.
Criminal records are not only used for pre-employment screening; they are also used to fire or promote people who are already employed. In this paper, the focus is on pre-employment screening, but the conclusions can be read across to the latter use of criminal records in the labor market.
Lam and Harcourt (2003, pp. 237–252).
In several countries employers are legally prohibited from inquiring into personal information including inter alia health history, marital status, family plans, and religious or ethnic status. See, e.g., Lam and Harcourt (2003, p. 241).
This critically assesses the current laws within which employers navigate. So, the important question is: are the current laws (or more precisely the common denominator of these laws), which make it legal for employers to inquire into applicants’ criminal records, morally problematic? The focus is not on what employers ought, morally speaking, to do irrespective of the existing law.
Clarification of phrases like ‘special and relevant match’ and ‘if the crime is serious’ is provided in “Alternative Models: Matching Crimes and Employment” section.
See Thomas (2007, p. 62); among these were, e.g., the purpose of tracking and supervising offenders who were no longer transported abroad or executed.
See, e.g., Thomas (2007, Chap. 7 and 8, especially 130–131 & 158) where numbers from the UK show an increase in criminal record disclosures to employers from 100,000 in 1985 to over 900,000 in 1993 and over 2,000,000 in 2002. This tendency mirrors what is happening in other countries: for the US see, Jacobs and Crepet (2008) and for Sweden, see Backman (2012).
In a study by Lam & Harcourt (2003, p. 241) 66 % of the 229 organizations investigated asked applicants about prior convictions.
See, e.g., Lam & Harcourt (2003, p. 242). I take it for granted that the use of criminal records is usually to the disadvantage of ex-offenders. In a few situations it can, admittedly, be to a job applicant’s advantage: this might happen where the employer (e.g., the police, a security service, an insurance company) is seeking knowledge and competences that only certain ex-offenders might have (think of hackers, or forgers).
See e.g., Lam and Harcourt (2003, pp. 237–238).
Lam & Harcourt (2003, p. 238).
They suggest, for example, that the law should “… prohibit employers from inquiring into spent convictions; prohibit public agencies from disclosing spent conviction information of employers and others … the above amendments [should be] incorporated directly into human rights legislation …” Lam & Harcourt (2003, p. 50).
Lam and Harcourt (2003, p. 238, 241).
E.g., consider: “Do ex-offenders even need legal protection from discrimination? The evidence suggests that they do. First, research does indicate that employers do make frequent inquires about job applicants’ criminal past. … Second … the effect of discrimination against ex-offenders … translates into fewer job opportunities and lower earnings.” Lam and Harcourt (2003, pp. 241–242).
Ibid., 249.
Like, e.g., Altman (2011), I take direct discrimination here to describe an act or practice which is aimed at imposing (consciously or unconsciously) a disadvantage on persons because they are members of a certain group.
But an act’s not being an instance of morally wrongful discrimination does not mean that it might not be morally wrong all things considered. For example, the use of reaction qualifications that will result in very few ex-offenders getting jobs can be seen as morally problematic because such use will cause inequality in the labor market or be less crime-preventive than non-use.
See Lam & Harcourt (2003, p. 240) for several references on this subject.
Even if it is true that employment reduces recidivism by up to 50 %, the recidivism rate would (all else being equal) still make the average ex-offender less stable than a non-offender.
Backman (2012, pp. 75–76).
However, studies have shown that if employers had no access to the criminal pasts of ex-offenders, it would be more difficult for some applicants to be hired. The case of black non-offenders in the US is given here. The reasoning is that employers who know there is on average a higher proportion of offenders among blacks will, if they have no information on actual criminal records, try to safeguard themselves from hiring ex-offenders by trying to avoid hiring black workers. It might be said in this case that where employers have no access to criminal records more non-black ex-offenders get jobs; but this has to be weighed against the reduced number of black non-offenders who are not hired. For data supporting this point, see Bushway (1996, 2004).
Treating people differently on the basis of statistical data can of course be morally problematic. This will be the case where: (i) the expectations on which the differential treatment is based are caused by immoral prejudice; (ii) those expectations are caused by inaccurate statistics; or (iii) the benefits of statistical discrimination are outweighed by the harm it may inflict on, for example, minorities. For clear discussion of these claims, see Lippert-Rasmussen (2013).
It seems fair to claim that, at least sometimes, there is a difference between direct and structural discrimination in our context: for example, if governments enacted privacy laws in order to protect vulnerable groups like young women, religious believers, ethnic and sexual minorities, and not because they consciously (or even unconsciously) want to disadvantage ex-offenders.
Studies by Dalsgaard (2002) show that 47 % of people who are diagnosed with ADHD will be (or have been) convicted for committing criminal acts. Such people usually lack impulse control.
There seems to be a genetic component for most of these psychological disorders—e.g., see (Nolen-Hoeksema 2011, pp. 274–275).
See Fazal and Danesh (2002).
The basic idea of matching is not entirely new. Hirsch (1997, p. 601) once suggested that conviction-based disqualifications “… should be used only when the occupation or activity is especially sensitive to abuse, and when the defendant’s criminal conduct is of a kind that is indicative of risk of that kind of abuse.” However, von Hirsch and Wasik focus on the moral evaluation of the court’s power to bar the offender from engaging in various professions or occupations. The theme of this paper is normative discussion of the degree to which employers should have access to the criminal records of job applicants.
This model has been proposed by several Danish political parties, including the Social Democrats and the Socialist Folk Party, but it was rejected by the parliament: see http://www.ft.dk/samling/20061/beslutningsforslag/b25/bilag/3/397060/index.htm (in Danish—Accessed May 19, 2014).
Again, compare Holzer (1996) and see note 5 above.
Australia’s Human Rights Commission (2012) has tried to specify when a criminal record is relevant to the inherent requirement of the job. See https://www.humanrights.gov.au/sites/default/files/content/human_rights/criminalrecord/on_the_record/download/otr_guidelines.pdf.
It is important to see that New Matching+ differs from von Hirsch and Wasik’s idea of matching. While von Hirsch and Wasik concentrate on whether or not the occupation is sensitive to abuse (e.g., a daycare center or a kindergarten), the focus for New Matching+ focus is not on whether the occupation is sensitive to abuse, but whether there is a special and relevant match between the crime and the job and that the crime in question, is serious.
The quotation is taken from the Danish newspaper 24 Timer, January 17, 2008.
E.g., see Duplessis, et al. (2001).
Concern for ex-offenders can also be cast in terms of their right to privacy: see Lippke (1993).
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Acknowledgments
Thanks to Jesper Ryberg, Kasper Lippert-Rasmussen, Frej Klem Thomsen, Sune Lægaard and Nils Holtug for valuable comments.
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Petersen, T.S. Some Ethical Considerations on the use of Criminal Records in the Labor Market: in Defense of a New Practice. J Bus Ethics 139, 443–453 (2016). https://doi.org/10.1007/s10551-015-2650-0
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DOI: https://doi.org/10.1007/s10551-015-2650-0