San Francisco Considers Making Job Applicants with Criminal Records a Protected Class when Seeking Employment

The City and County of San Francisco Human Rights Commission (HRC) will host a public forum on the use of criminal history by employers for employment screening on Monday, July 25, 2011 to consider enacting limitations on the use of criminal records by making job applicants with criminal pasts – excluding sex offenders and those convicted of violent crimes – a “protected” class when looking for work, according to a July 2011 HRC memo. For more information about the forum, which will take place from 4:00 p.m. to 7:00 p.m. PT in Room 400 of San Francisco City Hall, visit the SF HRC website at

The HRC meeting will start the process to create “protections in employment for individuals who have had prior arrests or convictions” by greatly limiting the use of criminal records in hiring decisions and designating ex-convicts a protected class. While the HRC cannot enact ordinances or regulations on its own, it can prepare recommendations for the San Francisco Board of Supervisors to review and enact.

The U.S. Equal Employment Opportunity Commission (EEOC) – the agency of the United States Government that enforces the federal employment discrimination laws – currently has guidelines on how employers may use criminal records of job applicants. Employers must show that they considered the following three factors to determine whether a decision not to hire an applicant due to a past criminal conviction was justified by business necessity:

  • The nature and gravity of the offense or offenses;
  • The time that has passed since the conviction or completion of the sentence, and;
  • The nature of the job held or sought.

The EEOC guidelines on how employers may use criminal records also makes the use of a blanket “no hire” policy that excludes job applicants with criminal histories unlawful under Title VII of the Civil Rights Act of 1964 since it discriminates against minority groups with higher rates of criminal convictions. The EEOC designates certain categories of job seekers “protected” classes under characteristics including: race/color, religion, national origin, ancestry, medical condition, disability (including AIDS), marital status, gender/sex (including pregnancy), and age (40+).

“An employer cannot simply say, ‘No one with a criminal record need apply.’ That statistically could end up having an unfair impact on certain groups,” explains Attorney Les Rosen, founder and CEO of Employment Screening Resources (ESR), a background check company headquartered in the San Francisco Bay area and accredited by The National Association of Professional Background Screeners (NAPBS®). “Instead, if an applicant has a criminal record, the employer must determine if there is a rational, job-related reason why that person is unfit for that job.  In other words, an employer must show that the consideration of the applicant’s criminal record is job-related and consistent with business necessity.”

As previously reported in the ESR News blog ‘EEOC Schedules Meeting on Use of Criminal Records for Employment Screening Background Checks on July 26,’ the EEOC’s next meeting on Tuesday, July 26, in Washington, D.C. will focus on the use of criminal records for employment screening background checks, particularly arrest and conviction records as a barrier to employment, and could be a critical step in the Commission’s adoption of policies that could significantly impact how employers use criminal background checks for employment purposes. The EEOC meeting on Tuesday, July 26 will begin at 9:30 A.M. Eastern Time in the Commission Meeting Room on the First Floor of the EEOC Office Building and will be open to the public.

The use of criminal records is a difficult issue because it involves important American values that can seem to conflict, according to Rosen, the author of ‘The Safe Hiring Manual,’ the first comprehensive guide to employment screening background checks, and a freqent speaker nationwide on employment screening issues as part of the ‘ESR Speaks’ program.

“On one hand, we value public safety and a safe workspace with honest and qualified employees. On the other hand, as a society we believe in second chances, and that a person’s past should not hold them back forever, particularly for more minor offenses,” Rosen explians. “The issue is how to draw lines that both protect innocent people and, at the same time, does not burden the taxpayers by creating a permanent class of unemployed people. Unless ex-offenders can have a fair chance at getting a job, they cannot become taxpaying and law abiding citizens and the taxpayers end up building more prisons then they do schools or hospitals, so it is a matter of finding a good balance.”

Rosen believes the record number of U.S. job seekers with criminal records shows the need for U.S. employers to ensure compliance with federal, state, and city guidelines concerning the use of criminal records when performing employment screening background checks. A March 2011 study by the National Employment Law Project (NELP) – ‘65 Million “Need Not Apply” – The Case for Reforming Criminal Background Checks for Employment’ – estimated that estimated that 64.6 million people in the United States, representing 27.8 percent of the U.S. adult population, had a criminal record for either an arrest or a conviction on file with U.S. states based on a 2008 Survey by the Bureau of Justice Statistics (BJS). The report from NELP – a national advocacy organization for the employment rights of the unemployed – is available at

Since job applicants with criminal records face greater challenges in finding employment – and since there are certain jobs where employers will justifiably not hire ex-offenders –Rosen wrote the article ‘Criminal Records and Getting Back into the Workforce: Six Critical Steps for Ex-offenders Trying to Get Back into the Workforce’ to help applicants with criminal pasts get and keep work to develop a successful job history. To read the article, click here (For a Spanish version of the article, click here).

For more information about background checks, visit Employment Screeing Resources (ESR) at

About Employment Screening Resources (ESR): Founded in 1997 in the San Francisco area with a mission to help employers and employees maintain safe workplaces, Employment Screening Resources (ESR) is accredited by The National Association of Professional Background Screeners (NAPBS®) and provides industry leading technology, legal compliance, service, turnaround, and accuracy. ESR also wrote the book on background checks with ‘The Safe Hiring Manual’ by founder and President Lester Rosen. For more information, visit