Orange is the New Black…Tie



Fill tumbler with ice and add a couple dashes orange bitters. Stir in equal parts gin, Campari, and red vermouth and garnish with an orange peel.


I had a recent casual conversation with an aspiring business owner about hiring the ideal employee and I asked what that employee would entail. Mixed in with a formidable list of characteristics was an item that made me cringe, “no felons.” Naturally, responsible managers want to ensure the safety and security of their personnel, but a blanket policy against hiring felons is not only ineffective, but illegal.

How could it be ineffective? Consider the structure of our legal system. If the purpose of prisons was solely to protect society from dangerous people, why would there be any other option than life sentences? Instead, we must assume the ideal, at least, is rehabilitation. It doesn’t always work, as a Bureau of Justice Systems report released in June 2016 noted that 35% of studied offenders were re-arrested within three years, going up to 43% in five.[1] What the report does not note, however, is the recidivism rate beyond the seventh year, which is how far most criminal background checks go. Anecdotal evidence states that recidivism beyond seven years falls even with or below rates for first time offenders.

What makes a “no felons” policy illegal is the disparate impact it has on certain protected classes. Those in the HR field, no doubt, recognize disparate impact from Griggs vs Duke Power Company (1971). Several studies have shown that the demographics of our prison population do not remotely reflect those of our general population. Further, as several studies have shown, African-Americans are less likely to receive a reduced charge compared with whites.[2] In other words, you could have two equally qualified candidates who committed the same crime, but could be found guilty of discrimination because the African-American was found guilty of a felony and the Anglo-American plead down to a misdemeanor.

Protect your business by establishing a “Targeted screen” process that considers nature of offense, time since the offense, and the position held or sought; and an “individualized assessment” that details the methodology used in assessing the candidate.

[1] Recidivism of Offenders Placed on Federal Community Supervision in 2005: Patterns from 2005-2010. Bureau of Labor Statistics, June 2016.

[2] M. Farnworth and R.Teske. Gender Differences in felony court processing: three hypotheses of disparity 1995; B. Johnson. Racial and ethnic disparities in sentencing departures across modes of conviction 2003; Kellough and Wortley. Remand for plea: Bail decisions and plea bargaining as commensurate decisions. 2002; et al

One thought on “Orange is the New Black…Tie

  1. Great post! I like the way you think and the way you express yourself. Everyone deserves a fair chance. Hopefully references play a part in the screening process, as well?


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