Some Ethical Considerations on the use of Criminal Records in the Labor Market: in Defense of a New PracticeJ Bus Ethics

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Authors
Thomas Søbirk Petersen
Year
2015
DOI
10.1007/s10551-015-2650-0
Subject
Law / Economics and Econometrics / Business, Management and Accounting (all) / Business and International Management

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Some Ethical Considerations on the use of Criminal Records in the Labor Market: in Defense of a New Practice

Thomas Søbirk Petersen1

Received: 11 July 2014 / Accepted: 1 April 2015  Springer Science+Business Media Dordrecht 2015

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.

Keywords Criminal records  Discrimination  Ethics 

Ex-offenders  Collateral sanctions  Job-screening 

Labor market

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).

Introduction

You may believe that a person who has served a criminal sentence will return to ordinary life with a clean slate because he has paid his debt to civil society. However, this is often not the case. A number of post-sentence collateral consequences (or ‘informal punishments’ or ‘collateral sanctions’) mean that the ex-offender is not accorded the same rights as citizens who have never been given a criminal sentence. To mention just a few, in some US states ex-offenders are barred from holding public employment, and seven states permanently bar them from voting.1In many parts of the world, employers access criminal records and refer to them in their selection processes, and this makes it far more difficult for ex-offenders to find jobs, especially regular and well-paid jobs, than citizens with clean records.2 This paper examines ethical issues raised by this last practice. To date, relatively little attention has been & Thomas Søbirk Petersen thomassp@ruc.dk 1 Department of Culture and Identity (CUID), Philosophy and

Science Studies, University of Roskilde, Universitetsvej 1, 4000 Roskilde, Denmark 1 E.g., see LaFollette (2005), Munn (2011), and Hirsch (1997) for critical discussion of these kinds of informal punishment. 2 E.g., see Lam & Harcourt (2003, pp. 241–242) and Pager (2003).

See also studies by Holzer (1996) showing that 65 % of employers will not knowingly hire an ex-offender. 123

J Bus Ethics

DOI 10.1007/s10551-015-2650-0 given to these issues in the fields of criminal justice ethics and business ethics.3

The aims of the paper are twofold. First, I shall discuss moral objections to the current, and commonest, use of criminal records in the labor market which allege that this use involves wrongful discrimination.4 I will argue that an employer does not necessarily engage in morally wrongful discrimination against a job applicant as a result of using criminal records in pre-employment screening.5 But I will also argue that, as things stand, ex-offenders who apply for jobs are subjected to what can be called ‘‘structural and morally wrongful discrimination’’ because laws allow employers to ask for (or directly access) their full criminal records. Second, I will describe and seek to evaluate proposals as to how employers can use criminal records in a way that allows for no such wrongful structural discrimination.

Before I turn to these tasks I will develop the background to the discussion in ‘‘Criminal Records’’ section. I will describe and interpret the most common use of criminal records in pre-recruitment screening6 and set out some data on the prevalence of criminal records in the population. In ‘‘Is the use of Criminal Records in Pre-employment

Screening Necessarily Discriminatory’’ section, I will query the notion that current use of criminal records in preemployment screening involves employers in direct wrongful discrimination against job-seeking ex-offenders.7

But in ‘‘Is Structural Discrimination of Ex-offenders the

Result of Unfair Laws’’ section, I will argue that ex-offenders are subject to another kind of unfair differential treatment—one which is based on current laws about privacy and disclosure of criminal records and which can be called ‘wrongful structural discrimination’. The leading idea here is that it is morally wrong for employers to ask for, or otherwise acquire information about, applicants’ criminal records given that they are in general legally prohibited from asking about an applicant’s health, family planning, religious faith, and sexual orientation.8 I will try to show that attempts to identify a moral difference between these latter types of information and the disclosure of criminal records fail.

In ‘‘Alternative Models: Matching Crimes and Employment’’ section, I will examine the conditions under which, from a legal and moral perspective, employers are entitled to access a job applicant’s criminal records.9 I shall propose that it should be lawful for an employer to access an applicant’s criminal records only if 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.10 ‘‘Crime Prevention and the Employer’s Demand to know