In short, yes. When it comes to the hiring process, an employer can refuse to hire an individual based on their criminal record, but there are some rules and limitations.
Although a large number of employers run a criminal background check, a 2012 survey conducted by SHRM (Society for Human Resource Management) found that the percentage of employers not using background checks had increased from 7% in 2010 to 14% in 2012.
The survey revealed:
“Checks continued to be made most frequently for positions with fiduciary responsibilities and those with access to highly confidential employee information. Survey results also showed a heightened sensitivity to vulnerable populations. Background checks for job candidates who work with children, the elderly and the disabled were more likely than for positions for which state law requires background checks or for job candidates who have security responsibilities.”
Federal law does not prohibit employers from using criminal background information in the hiring process, but many states have rules in place for protecting applicants. Some of these rules include employers asking about criminal records that have been expunged or sealed as well as using records of arrests against an applicant.
According to The Equal Employment Opportunity Commission (EEOC), an employer can’t have a blanket policy of excluding every individual with a criminal record because this could result in discrimination against certain protected groups such as Latinos and African Americans.
The employer must show that not hiring a certain individual based on criminal record is job related and consistent with business necessity.