‘Ban the box’ campaign raises questions

How should employers handle criminal conviction info during recruitment?
By Liz Bernier
|Canadian HR Reporter|Last Updated: 09/15/2014

It’s an accepted best practice that employers should make diversity a priority within their organizations, but the focus still tends to remain on a few select groups.

Visible minorities, women and persons with disabilities are automatically included in the list when we think about what it takes to build a diverse team. But what about people with a past criminal conviction record?

The growing success of the "Ban the Box" campaign in the United States has raised questions about how employers can best approach the issue of criminal records in the hiring process.

South of the border, Ban the Box is urging employers to remove questions about criminal conviction information from application forms, so prospective employees have the chance to display their skills and qualifications before being asked about past offences.

The campaign has seen significant success — more than 45 cities and counties, including New York City, Boston, Chicago, Detroit and San Francisco, have removed questions around criminal convictions from employment applications. Seven states have changed the hiring practices in public employment to reduce discrimination around conviction histories, according to the campaign’s website.

But the laws around the hiring process and conviction histories differ greatly between the United States and Canada, said Stuart Rudner, founding partner at Rudner MacDonald in Toronto. As a result, the Ban the Box movement is unlikely to expand into Canada because hiring practices are quite different and that titular checkbox on the application form is not as pervasive here.

"That being said, many Canadian employers do adopt policies requiring criminal background checks of all applicants, regardless of the position in question," he said — so there are still some complex issues to consider.

Impact on hiring

Criminal conviction information inarguably has a significant impact on the hiring process, said Catherine Latimer, executive director of the John Howard Society in Ottawa.

"Many employers have a policy not to hire someone with a criminal record so, in many cases, it’s a huge, huge barrier to finding employment. They uniformly use police records as their screening tool, so this leaves a great number of people disenchanted about the whole jobseeking process. And those that enter the jobseeking process with a criminal record tend to be quite discouraged by it," she said.

By automatically discounting those with a conviction history, employers run the risk of overlooking a significant talent base.

"There’s a lot of people who have criminal records in Canada — I’ve heard estimates that it’s one in 10 people have a criminal record — and if you look at the gender breakdown, it’s about 20 per cent of men have criminal records," she said.

"This is a huge area where we as a society do ourselves a disservice by not encouraging fuller employment of a lot of these people who are fully capable of working. The fact they have a criminal record in a certain area doesn’t in any way detract from their (abilities) of being really highly skilled and excellent employees."

Provincial differences

Laws around asking for criminal conviction information in the recruitment process vary dramatically from province to province, said Jeffrey Mitchell, a partner at Dentons in Toronto.

"In a lot of respects, the provinces are similar but when it comes to criminal convictions, the provinces are actually quite different in their approach," he said. "In Ontario, the main piece of legislation that you have to look at is the Ontario Human Rights Code. And that contains a definition of record of offences, which is a prohibited ground of discrimination.

"When it comes to criminal offences, the definition of record of offences is quite narrow, because it only covers an offence where someone has received a pardon. So right now in Ontario, the only protection someone has when it comes to criminal convictions is protection against discrimination where a pardon has been granted."

So if you have a conviction and a pardon has not been granted for it, employers can legally refuse to offer you the job on that basis alone, he said.

"In Ontario right now, that doesn’t have to be related to the position that the person is applying for — it’s just simply the fact that they’ve got a criminal conviction and have not received a pardon."

But for many, pardons can be difficult to get, said Latimer — the law recently changed to raise the cost of a record suspension to about $630.

"Also, the backlog of applications is huge," she said. "People can be waiting two years to have their application processed."

Other provinces take a different approach, said Mitchell.

"For example, in B.C. and Quebec… generally, their legislation requires that there be a connection between the conviction and the nature of the position. So the employer can ask the question but then has to prove — if there’s a refusal to employ — that the criminal conviction was related to the nature of the position and, therefore, made it inappropriate for the person to be hired. So it’s a connection test in B.C. and Quebec, which is very different from Ontario," he said.

"Then, you move to Alberta and Saskatchewan and they don’t have protection in their human rights legislation from discrimination on the basis of criminal convictions. So in those two provinces, the human rights legislation doesn’t deal with it at all."

This hodgepodge of different provincial approaches makes it quite tricky for employers to create a common application form across Canada, he said.

"I always advise that they’ve got to be really careful around criminal convictions if they want to do that."

Privacy legislation is another piece of the puzzle, said Rudner — one that also differs from jurisdiction to jurisdiction.

"However, where privacy legislation is in place, then employers will have to justify background checks such as criminal record checks, credit checks and other invasions into an applicant’s privacy. In some cases, they will be able to show that there is a legitimate need. In others, they will not," he said.

Another interesting factor is that in Ontario, there’s no protection for people who have been charged with an offence but not convicted, said Mitchell.

"The record of offences (protection) only deals with convictions for which a pardon has been granted. So if you’ve been charged with an offence, there’s no protection — if the employer finds out you’ve been charged with the offence, they can take action and it’s not a human rights basis of discrimination," he said.

"The case law is quite clear. There are several recent decisions of the Human Rights Tribunal of Ontario that say if you’ve just been accused or charges have been laid, you don’t have protection."

Best practices

From a purely legal standpoint, if criminal record checks can be legally justified, they can be requested at any point in the hiring process, said Rudner. But that doesn’t mean they should be.

"The most prudent course of action is to only request them after a conditional offer of employment has been made. Obviously, the offer will be conditional upon satisfactory results of the checks in question," he said. "Adopting this approach will reduce the number of checks that are required, as employers would only have to make inquiries relating to the chosen applicants."

This course could also help employers avoid a scenario where unsuccessful candidates allege they were denied the position because of their record of offences, he said.

"If the employer does not even obtain information relating to the record of offences until after the successful candidate is chosen, then they can easily refute such an allegation by demonstrating that they were not aware of the record of offences at the time the decision was made."

The hiring process can be a human rights minefield, said Rudner, so it’s generally wise to avoid collecting sensitive information if it’s not necessary.

"I often advise our corporate clients that they do not want to know any more than they have to about an applicant. By way of example, if they find out that an applicant has cancer and subsequently make an offer of employment to someone else, it would be open to the unsuccessful applicant to allege that they were not offered employment due to the fact that they have cancer. If the employer was unaware of that fact, and can show this, then it will be far easier to defend against such an allegation," he said.

"Similarly, there is no good reason to conduct a criminal background check too early in the process. To begin with, employers should assess whether a criminal background check is reasonably required at all for the position in question. If it is, they should be prepared to defend that need by demonstrating a bona fide occupational requirement."

Employers should stop discounting those with a conviction history and instead be open to the skills and talents they can bring to the table, said Latimer.

"Employers should look at some of the success stories, and they should be working with some of the agencies that will help with the integration of people into the workforce," she said.

"There’s no reason for them not to be looking at a potentially highly skilled group of workers, simply because they have a past criminal record."