Fair Chance Hiring: What Employers Should Know About Criminal Records
Field experiments have documented substantial employment barriers associated with criminal records in specific labor markets.
In a landmark 2003 audit study, sociologist Devah Pager found that a criminal record significantly reduced employment opportunities among the job seekers studied (Pager, 2003).
But fair chance hiring does not mean employers have to ignore criminal history.
For employers, the more practical question is whether a particular record is actually relevant to the risks and responsibilities of a particular job.
Current U.S. Equal Employment Opportunity Commission guidance tells employers considering criminal history to look at factors including the nature and seriousness of the offense, how much time has passed, and the nature of the position (U.S. Equal Employment Opportunity Commission [EEOC], n.d.-a).
That creates a more useful approach than treating every record as an automatic disqualification.
Note: This article provides general information about hiring and employment law. It is not legal advice. Federal, state, and local requirements vary, and employers should consult qualified employment counsel about their specific practices.
What Is Fair Chance Hiring?
In this article, fair chance hiring means giving qualified applicants with criminal records an opportunity to be evaluated through a job-related hiring process rather than automatically excluding everyone who has a record.
It does not mean:
employers can never conduct background checks;
criminal history can never be relevant to a job;
employers must hire every applicant with a record; or
every criminal-record exclusion violates employment law.
The EEOC specifically states that having a criminal record is not itself a protected status under Title VII.
However, an employer's use of criminal-history information can raise Title VII concerns when it results in discrimination based on a protected characteristic such as race or national origin (EEOC, 2012).
What Should Employers Consider About a Criminal Record?
The EEOC identifies three factors that provide a starting point for evaluating whether particular criminal conduct is relevant to employment.
These are commonly referred to as the Green factors:
The nature and gravity of the offense or conduct
The time that has passed since the offense, conduct, or completion of the sentence
The nature of the job held or sought
(EEOC, 2012)
The idea is straightforward.
A conviction may be highly relevant to one position and much less relevant to another.
The age of the record may also matter, as may the actual duties and risks involved in the job.
That is different from a rule such as: “Anyone who has ever been convicted of any crime is automatically ineligible.”
Current EEOC guidance advises employers to consider how a person's criminal history relates to the risks and responsibilities of the position rather than treating every record the same way (EEOC, n.d.-a).
Arrests and Convictions Are Not the Same
This distinction is especially important.
The EEOC states that an arrest does not establish that criminal conduct occurred.
An employer therefore should not treat the fact of an arrest itself as proof that someone committed a crime.
However, an employer may consider evidence of the conduct underlying an arrest when there is evidence that the conduct occurred and that it is relevant to the job (EEOC, 2012).
Convictions are treated differently because they generally provide stronger evidence that the underlying conduct occurred.
Even then, the EEOC recommends considering how the conviction relates to the position rather than assuming every conviction should permanently disqualify someone from employment (EEOC, 2012; EEOC, n.d.-a).
What Is an Individualized Assessment?
An individualized assessment gives an applicant an opportunity to provide additional information before an employer applies a criminal-record exclusion to that person.
According to EEOC guidance, relevant information can include:
whether the record is accurate;
circumstances surrounding the offense;
how much time has passed;
employment history before and after the offense;
evidence of education or rehabilitation;
employment or character references; and
experience successfully performing similar work after the conviction.
(EEOC, 2012)
There is an important legal nuance here.
The EEOC does not say Title VII requires an individualized assessment in every possible situation.
Its guidance says a narrowly tailored criminal-record screen may sometimes be justified without one. However, individualized assessment can help an employer consider more complete information and determine whether its policy is appropriately applied to a particular person (EEOC, 2012).
So it would be inaccurate to say: “Federal law always requires an individualized assessment.”
It does not.
What Does Research Show About Criminal Records and Employment?
One of the most influential studies comes from Devah Pager's 2003 field experiment.
Pager used matched applicants who applied for real entry-level jobs while the research design varied criminal-record status and race.
The study found that having a criminal record substantially reduced employment opportunities among the applicants studied and also documented important racial differences in employment outcomes (Pager, 2003).
The study is more than two decades old and examined a specific labor market and group of applicants.
Its results should therefore not be treated as the exact effect every applicant with a record experiences today.
But it established an important research question that later studies continued to examine: How does criminal-history information affect access to employment?
Does “Ban the Box” Solve Criminal-Record Hiring Barriers?
Not necessarily.
“Ban the box” generally refers to policies that delay when employers may ask applicants about criminal history.
The goal is often to allow employers to consider qualifications before criminal-history information enters the hiring process.
But research has identified possible unintended consequences.
Amanda Agan and Sonja Starr conducted a field experiment involving approximately 15,000 fictitious applications to employers in New Jersey and New York City before and after ban-the-box policies were adopted.
They found that employers that previously asked about criminal records were much more likely to call applicants without records. After affected employers stopped asking about criminal history at the initial stage, however, the Black-White callback gap increased substantially within the study (Agan & Starr, 2018).
That finding does not prove every ban-the-box policy produces the same result.
It does show why fair chance hiring should not be reduced to simply removing one question from an application.
A hiring system can still contain other forms of unequal treatment even when criminal-history inquiries are delayed.
Does the Federal Fair Chance Act Apply to Every Employer?
No.
The Fair Chance to Compete for Jobs Act of 2019 generally restricts criminal-history inquiries before a conditional offer for covered federal employment.
The U.S. Office of Personnel Management's implementation guidance also applies those restrictions when a federal contractor is acting on behalf of a hiring agency in the covered federal hiring process, subject to specified exceptions (U.S. Office of Personnel Management [OPM], 2024).
That federal rule should not be described as a universal requirement for every private employer in the United States.
Separate state and local laws may impose their own restrictions on when or how employers can ask about criminal history.
Employers therefore need to review the requirements that apply in the jurisdictions where they hire.
The FTC likewise advises employers to check state and municipal requirements because those rules may impose additional obligations (Federal Trade Commission [FTC] & EEOC, 2014).
What About Employment Background Checks?
Criminal-history decisions can also involve the Fair Credit Reporting Act, or FCRA.
When an employer obtains a background report from a third-party company that qualifies as a consumer reporting agency, federal law imposes procedural requirements.
According to joint FTC and EEOC guidance, employers generally need to:
provide written notice that a background report may be used for employment purposes;
obtain written permission before obtaining the report;
provide the applicant with a copy of the report and a summary of FCRA rights before taking certain adverse action based on it; and
provide additional information after adverse action, including information about the reporting company and the individual's right to dispute the report.
(FTC & EEOC, 2014)
These FCRA procedures are separate from the question of whether the underlying criminal-history policy complies with employment discrimination law.
Can Employers Automatically Reject Anyone With a Criminal Record?
A blanket rule deserves particular scrutiny.
Current EEOC guidance advises employers to avoid criminal-record policies that significantly disadvantage people of a protected race or national origin when the policy does not accurately predict who will be a responsible, reliable, or safe employee (EEOC, n.d.-b).
The agency's detailed guidance similarly explains that across-the-board exclusions based on criminal conduct do not account for factors such as:
the nature of the offense;
how much time has passed; or
the nature of the job.
(EEOC, 2012)
That does not mean employers must disregard legitimate safety, security, regulatory, or trust concerns.
Some laws actually prohibit people with certain convictions from holding particular jobs.
The more useful question is: What is the relationship between this particular history and this particular position?
What Can Employers Take From Fair Chance Hiring?
Fair chance hiring does not require lowering standards.
It requires making the standard more specific.
Consider Relevance, Not Just the Existence of a Record
The EEOC's three-factor approach provides a practical starting point:
What happened?
How long ago did it happen?
What does it have to do with this job?
Those questions are more precise than treating all convictions as equivalent.
Treat Comparable Applicants Consistently
The EEOC advises employers to apply criminal-history policies consistently.
For example, applicants of different races or national origins with similar criminal records should not receive different treatment because of those protected characteristics (EEOC, n.d.-b).
Allow Applicants to Correct or Explain Information
Criminal-history records can contain errors or incomplete information.
Giving an applicant an opportunity to respond can help an employer evaluate the circumstances rather than relying only on what appears in a report.
The FCRA process also gives applicants an opportunity to review certain background-report information before an adverse employment decision based on that report is finalized (FTC & EEOC, 2014).
Check State and Local Requirements
Fair chance and ban-the-box rules vary considerably across jurisdictions.
A process that satisfies federal requirements may still require additional steps under state or local law.
Why Fair Chance Hiring Matters for Diversity.com
Inclusive hiring is fundamentally about whether qualified people have a meaningful opportunity to compete.
A criminal record can be relevant to some employment decisions.
But relevance is not the same thing as automatic exclusion.
That is why fair chance hiring belongs in the broader Diversity.com conversation.
The goal is not to tell employers to ignore legitimate risk.
It is to distinguish between legitimate job requirements and barriers that automatically remove people from consideration without asking whether their history actually matters to the work.
That is consistent with a broader principle behind inclusive hiring:
Widen access to qualified candidates while keeping the standards used to evaluate the job itself clear and consistent.
Final Thoughts
Criminal history can matter in hiring.
But the existence of a record does not tell an employer everything it needs to know about whether someone can perform a job safely, responsibly, and successfully.
Federal guidance encourages employers to look more closely at the relationship between the record and the role.
That means considering the nature of the conduct, how much time has passed, and what the job actually requires.
Research also shows why simplistic solutions deserve caution.
Criminal-record screening can create significant barriers to employment, but simply delaying the question does not automatically eliminate unequal hiring outcomes.
For Diversity.com, the principle is straightforward: A second chance does not mean a second standard.
It means giving qualified people a realistic opportunity to be evaluated against the requirements of the job rather than being automatically defined by a record that may or may not be relevant to it.
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Frequently Asked Questions
What is fair chance hiring?
In this article, fair chance hiring means evaluating qualified applicants with criminal records through a job-related process rather than automatically excluding everyone with a criminal history.
The term can include practices such as delaying criminal-history inquiries, considering the relevance and age of a record, and giving applicants an opportunity to provide context.
Can employers hire people with criminal records?
Yes, in many circumstances.
A criminal record does not automatically bar someone from most jobs.
However, certain federal, state, or local laws may prohibit people with particular convictions from holding specified positions, and employers may consider relevant criminal history consistent with applicable law (EEOC, n.d.-a).
Is having a criminal record protected under Title VII?
No.
Having a criminal record is not itself a protected category under Title VII.
However, the EEOC explains that the use of criminal-history information can raise Title VII concerns when it results in discrimination based on protected characteristics such as race or national origin (EEOC, 2012).
Can an employer reject someone because they were arrested?
The fact of an arrest alone does not establish that someone committed criminal conduct.
EEOC guidance distinguishes arrests from convictions. An employer may consider evidence of the underlying conduct when it is relevant to the particular job, but the arrest itself is not proof of wrongdoing (EEOC, 2012).
Does federal law require every employer to ban the box?
No.
The federal Fair Chance Act applies to covered federal employment and certain federal-contractor activity performed on behalf of hiring agencies. Separate state and local laws may impose broader requirements (OPM, 2024).
Do employers have to ignore convictions?
No.
Fair chance hiring does not require employers to disregard criminal history.
The EEOC's guidance instead focuses on whether the criminal history is relevant to the position and whether the employer's policy complies with applicable employment-discrimination law.
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Sources & References
Agan, A., & Starr, S. (2018). Ban the box, criminal records, and racial discrimination: A field experiment. The Quarterly Journal of Economics, 133(1), 191–235. https://doi.org/10.1093/qje/qjx028
Federal Trade Commission, & U.S. Equal Employment Opportunity Commission. (2014, February 10). Background checks: What employers need to know. https://www.ftc.gov/business-guidance/resources/background-checks-what-employers-need-know
Pager, D. (2003). The mark of a criminal record. American Journal of Sociology, 108(5), 937–975. https://doi.org/10.1086/374403
U.S. Equal Employment Opportunity Commission. (2012, April 25). Enforcement guidance on the consideration of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act. https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions
U.S. Equal Employment Opportunity Commission. (n.d.-a). Arrest and conviction records: Resources for job seekers, workers and employers. Retrieved October 1, 2026, from https://www.eeoc.gov/arrestandconviction
U.S. Equal Employment Opportunity Commission. (n.d.-b). Criminal records. Retrieved October 1, 2026, from https://www.eeoc.gov/employers/small-business/criminal-records
U.S. Office of Personnel Management. (2024, April 25). Issuance of regulations on the Fair Chance to Compete for Jobs Act of 2019: Guidance on restrictions on preemployment criminal history inquiries. https://www.opm.gov/chcoc/transmittals/2024/FCA%20Implementation%20Guidance%20April%2025%202024.pdf
