What Is Fair Chance Hiring?

There are many barriers to securing gainful employment for formerly incarcerated applicants. Experts say that stigmas about ex-offenders as untrustworthy or dangerous can have a lifelong impact on their functioning in society. 

Such biases translate to the hiring process. They exacerbate the higher rates of unemployment they face and the Covid-19 pandemic, which saw many formerly incarcerated people struggling to find jobs. The picture you get of the job market is not pretty for ex-offenders.

The existence of those barriers is what gave rise to a practice like Fair Chance hiring. The fact that the unemployment rate skyrockets as high as 65% up to four years after release among some formerly incarcerated groups shows that hard work and determination aren’t always enough. 

Being a Fair Chance employer means expanding your talent pool to include ex-offenders and addressing bias and stigma against them. Fair chance practices extend to all steps in the hiring process, from job posting to recruiting, interviewing, background checks, onboarding, and retention. 

As an employer, you can do your part to correct the harms caused by societal stigmas by being a fair chance employer. Doing so also ensures compliance with all the rules and regulations around hiring ex-offenders.

The Fair Chance Act set a federal standard for companies to follow when hiring those with criminal records. Many states and municipalities followed suit, implementing their own laws to improve on the Fair Chance Act. 

Federal Laws

Fair Chance to Compete for Jobs Act

Lawmakers passed the Fair Chance to Compete for Jobs Act, more commonly called the Fair Chance Act, in 2019. It made it illegal for federal agencies and contractors to ask individuals in the hiring process to disclose their criminal records before extending them an offer. The Act was signed into law at the end of 2020 and took effect the following year. 

The act aims to remove biases that may influence the hiring manager’s perception. It intends to level the playing field for all job applicants so that their assessment only looks at their qualifications, interview, and other application materials. Only after the company decides to proceed with an employment offer can they ask candidates to disclose their criminal histories. 

It’s important to note that the Fair Chance Act targets only federal employers and contractors. According to the Brookings Institute, the public sector comprises just over 15% of the workforce.

The limitation to the public sector means that not every formerly incarcerated applicant can benefit from the protections of the Fair Chance Act. If someone gets out of prison and their skills don’t lend themselves to a public sector job, they won’t automatically qualify for these protections.

Title VII of the Civil Rights Act of 1964

The Fair Chance Act’s employment protections expand on civil protections enshrined in Title VII of the Civil Rights Act of 1964. That Act protected employees and applicants from discrimination based on these identities:

• Sex
• Race
• Age (40 and older)
• Disability
• Pregnancy
• Sexual orientation
• Gender identity
• Genetic information
• Color
• National origin
• Religion

The Fair Chance Act represents a bold step forward in expanding the scope of the Civil Rights Act.

State and Municipal Laws

According to the National Employment Law Project, 37 states and 150 cities have taken steps to remove barriers to employment for individuals with records. Here are just some of those laws:

The California Fair Chance Act

This statewide act passed one year before the federal law. It prohibits employers in California from asking about the applicant’s criminal records before offering a job.

Illinois’ Fair Hiring Law

Illinois lawmakers signed this act into law in 2021. It decreed that employers could not make an “adverse employment” decision based on a prior conviction unless that conviction substantially relates to the nature of the job.

“Ban the Box” Policy

The federal government, 37 states, and the District of Columbia have adopted a “ban-the-box” policy. It removes the box that applicants must check to confirm whether or not they have a criminal record. 

Banning the box means employers must delay the criminal background check step until later in the hiring process to give everyone an equal shot.

Extending the Fair Chance Act to Private Employment

After the passage of the Fair Chance Act, the remaining 85% of the economy outside of the public sector still had no protections for the formerly incarcerated. That has begun to change, as 15 states and 22 cities and counties have extended these protections to private employment.

Fair chance hiring is the law of the land in most of the country. More importantly, it’s the right way to hire. Here’s how to take steps toward giving everyone a fair chance.

1. Only assess for convictions directly related to the position

When assessing applicants’ criminal records, only consider convictions that have a bearing on the nature of the job. If the charge or conviction has nothing to do with what their daily duties would entail, forget about it.

2. Don’t mention record checks on job posts

Don’t scare off reformed and qualified candidates with records by mentioning criminal record checks in your job post. Often, candidates with criminal records will be forthcoming in job interviews. Allow them to tell you their story—don’t make up your own for them by looking at a record that gives no context.

3. Consider the date of convictions

Some ex-offenders face bias and discrimination in housing and employment years, even decades after release. Nobody wants to face judgment for actions taken in their teens or early 20s. So extend your applicants the grace of kind assumptions.

Consider the recency of convictions when assessing the criminal records of your applicants.

4. Make sure your company holds no implicit biases against the formerly incarcerated

This internal check is an important step and can take many forms. You need to get everyone in your company on the same page regarding hiring and working with ex-offenders. 

It’s not enough to send an email or have a single sensitivity training session. There needs to be a concerted effort to eradicate biases against formerly incarcerated workers in your workplace.

5. Completely talk through protocol around criminal records before you start the hiring process

Make sure everyone is on the same page when it comes to applicants’ criminal records. There needs to be a protocol for handling convictions in a record check or when applicants disclose the information in an interview. How do you address it, how do you move forward, and what kind of conversations do you need to have?