Many professionals feel uncomfortable sharing office space with a convicted sex offender. And it’s understandable, to an extent. People want to feel comfortable and safe at work, but the biases against people who have a criminal conviction can impact more than just employee stress levels. Most of us don’t want to work with violent offenders, either. So, the question is, can employers refuse to hire sex offenders?
In some states, job applicants don’t have to disclose their criminal history. Other states don’t require reporting if the conviction was more than ten years ago. Plus, some people have criminal records that predate modern sex offender registries. So how can you determine whether an employee is a sex offender?
Each state maintains a sex offender database, thanks to legislation called Megan’s Law. The registry is a public source of information on sex offenders’ crimes and their current locations. The idea is that people are more aware of who is living in their neighborhood. Therefore, they are more careful around potential predators, and the offenders themselves are less likely to re-offend.
Many sex offenders received convictions prior to modern legislation. In most states, judges had some leniency on whether offenders had to show up on a registry. The result is that some people may not show up on a Megan’s Law database in the first place.
While many jurisdictions provide public access to court records, not all do. Plus, many systems are dated, only including recent cases in online repositories. And if an employer wants to search for employees’ court records, they may have to pay.
The alternative is ordering a comprehensive criminal background check through a professional agency. Investigators scan the employee or job candidate’s history to see whether they have committed a crime. You receive details on the nature of any crimes, rehabilitation measures or prison terms, and more.
Of course, these details may not show up on most background checks. There’s no way of confirming an applicant’s history at all unless they are 100 percent honest about their past.
In some states, employers cannot request information on a candidate’s criminal status. However, even in states with such legislation, employers can still perform background checks to get the answers they seek.
The drawback to doing these checks is that legally, you cannot deny employment to someone based on their criminal history alone. Unless an applicant is a threat to your clients or employees, you have no legal basis for refusing to hire them. The government narrowly defines “threat” in terms of sex offenders in the workplace.
In short, no, employers cannot outright refuse to hire sex offenders. However, there are exceptions. You can still avoid hiring a sex offender if you feel they’re not a good fit for your team.
Federal law does not bar companies from asking job applicants (or current employees) about their criminal history. However, anti-discrimination laws prohibit them from using the information to deny someone employment.
Other protected conditions under anti-discrimination policies include disability, color, sex, religion, and other factors. Ethical employers are unconcerned with such policies, of course. They rely on background checks to confirm applicants’ qualifications, ensure people are who they say they are, and determine whether the candidate will contribute positively to company culture.
But in some cases, what employers find during a background scan—including a criminal check—leads them to not want to hire someone. One example is that an employer cannot use the knowledge that a prospective candidate is pregnant to retract a job offer.
Let’s say you are investigating such an applicant’s background and find that she routinely complains about her current boss. That is a strike against the applicant because it goes against your company culture.
Documenting legitimate reasons you do not want to hire someone is helpful when their background check turns up information that could be used to discriminate against them.
Other employers who can legally refuse to hire sex offenders span many industries. In general, if a prospective hire is a threat to your employees or clients, you can deny them a job offer. Certain protected populations fall under the “threatened” category.
For employers in the following fields, denying sex offender applicants may even be required by law:
Also, depending on their level of classification, sex offenders may not be able to live or work within a set distance from schools or daycares. Therefore, a company which shares property or is near a daycare center, school, elderly care facility, or even a public park may not be able to hire a sex offender of a certain level.
Levels range from one to three. Three is the highest level and the one which is labeled as most likely to re-offend. Levels and definitions can vary depending on the state, however, making it even more complicated to determine who you can and cannot hire.
While you cannot outright refuse to hire a sex offender in most cases, there are preventative measures you can take. Performing background checks—including thorough criminal records scans—and even social media screenings helps to deter sex offenders from applying to your company in the first place. In addition, open communication about each employee’s background can help you develop a reliable and qualified staff.