Question sidney Law

Employing ex-convicts - consequentialist and rights-based considerations

Should employers be allowed to discriminate against applicants who have a criminal record?

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Answer Internal Staff

Employers are not generally allowed to turn away candidates for employment on the basis of superficial factors such as age, race, sexuality and so on. However, there are some clear potential risks that are faced by employers when hiring somebody who has been convicted for a criminal offence. This raises a serious ethical question: if it is wrong to turn somebody away on the basis of a protected characteristic, is it therefore wrong to turn somebody away because of a criminal record, even when this is not a clear predictor of their future behaviour?

One way of making such a judgement is to consider the potential outcomes of the decision. This will obviously vary depending on the context of the employment: for example, it is easy to justify excluding paedophiles from working with children on the grounds that this could result in abuse. On the other hand, this becomes more difficult to justify in jobs where little is at stake and the risks are low. However, the problem with this approach is that it may not give ex-convicts enough opportunities to work: there are, arguably, very few jobs in which the stakes are so low as to be negligible – bad behaviour is likely to result in some form of harm, even if this only manifests in the form of lost business. If there is a chance for this to occur, then the employer might reasonably be expected to select another equally-skilled applicant on the basis of their duty to their stakeholders.

Another approach is to consider the duty that the employer has towards all applicants. One could argue that, as a point of principle, all applicants should be given an equal chance to prove themselves worthy of employment, regardless of their background. After all, many criminals turn their lives around and one’s previous actions are by no means a reliable predictor of one’s actions in the future. It could be argued that it is unjust to lock a person out of earning a livelihood in this way, and that everybody deserves a second chance. On the other hand, this logic could put people in harm’s way, since we know that a certain proportion of ex-convicts will offend again.

Clearly, there are multiple factors acting on an ethical decision like this one, and a measured, contextual, and holistic approach is needed, which weighs up people’s rights and duties alongside the potential outcomes of the specific situation.