Share “Q&A with Susan B. Loving: Employers...”

Q&A with Susan B. Loving: Employers shouldn't ask applicants about past convictions in initial screenings

Susan B. Loving, of Lester, Loving & Davies, discusses how employers should handle screening or hiring convicted felons.
by Paula Burkes Published: February 7, 2013

Q&A with Susan B. Loving

Employers should establish policy on hiring, past convictions

Q: Can employers be liable for discrimination, for refusing to hire convicted felons?

A: Title VII of the Civil Rights Act prohibits discrimination in employment based on race, color, religion, sex or national origin. The law recognizes that an employer's blanket policy of using criminal records to screen for employment may adversely impact certain minority groups or individuals, based on stereotypes and/or because it discriminates against individual minority applicants.

Q: So felons are denied jobs for a lifetime?

A: Studies show there's a time at which most former criminals are no longer any more likely to commit a crime than the average person. The law thus requires employers' hiring policies relating to criminal conduct must be based on business necessity. As one court said, “We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.” This is particularly true where the employer's policy disregards how long ago the conviction occurred.

Q: How do I establish a policy regarding this issue?

A: To establish that a policy excluding employees based on criminal conduct is job-related and consistent with business necessity, the employer must show the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. Courts will look at whether a practice or policy bears a demonstrable relationship to successful performance of the job for which it was used, and measures the person for the job and not the person in the abstract. The exclusionary policy must be shown to be necessary to safe and efficient job performance.

Continue reading this story on the...

by Paula Burkes
A 1981 journalism graduate of Oklahoma State University, Paula Burkes has more than 30 years experience writing and editing award-winning material for newspapers and healthcare, educational and telecommunications institutions in Tulsa, Oklahoma...
+ show more


  1. 1
    Two adults, two children found dead in apparent murder-suicide at east Tulsa home
  2. 2
    Ben Stoller, an 11-year-old golfer from Owasso, will compete in national event this weekend at...
  3. 3
    Tulsa couple jailed after threatening, shooting at guests inside home
  4. 4
    Stillwater councilors say energy lobbyists gave ultimatum on drilling-ordinance vote
  5. 5
    ConocoPhillips estimates Bartlesville layoffs at less than 4 percent of workforce
+ show more