Can You Refuse to Hire a Sex Offender?

As an employer and business owner, you have a legal obligation to maintain a safe workplace and protect your customers. To these ends, one day you may need to inquire about the legality of refusing to hire a sex offender or terminating that offender's employment.

Discovering whether an applicant is a convicted sex offender is usually straightforward. Each state has a version of Megan’s law (a federal law) which requires them to make the state’s sex offender registry public. Most, if not all, are available online and contain important information regarding the crime and location of each registered sex offender. Unfortunately, once you discover an applicant is a sex offender there's not always a clear answer on what to do next.

In most situations, there is a fine line between adhering to state laws limiting the use of convictions in employment decisions, and the responsibility not to engage in negligent hiring.

What Is the Typical Hiring Process?

State laws addressing the use of convictions in employment tend to mirror legal rules governing employer liability for the behavior of employees. Typically, the employer will run a background check on all potential employees and can use the results as part of any hiring decisions. State law varies on when you can run the background check, though. For example, in New York, an employer can generally not run a background check until after a job offer. Regardless, any job applicant with a criminal background should be prepared to explain the details of any criminal convictions along with information regarding their work history. This is especially true for people who have sex offender status.

It is possible that the job applicant was ordered to complete sex offender registration due to a misdemeanor conviction for urinating in public and not something more egregious. The details will depend on the laws of the jurisdiction where the case occurred. The United States Department of Labor has guidance on how to handle these types of questions.

What Analysis Should Take Place to Decide Whether to Hire an Individual With a Record?

Refusing to hire a sex offender (or any criminal), generally requires a connection between the job and the criminal offense such that employment would create an unreasonable risk to your employees and customers. Employers must conduct an individualized assessment for each potential hire. There are also programs available such as the Federal Bonding Program which may give employers some comfort in hiring individuals with a conviction record.

An analysis under this rule would include gathering information about the type of sex crime and victim, your employees, your business model, and your customers. The most important question is: Would the job applicant’s criminal history affect their ability to perform the job they applied for?

Other questions to consider include whether the offender employee would be exposed to persons similar to his victim and if the offender would be left unsupervised with other employees or customers.

A few examples may help.

• If a male applicant was convicted of sexual assault of a woman, there could be concerns over the safety of your female employees if the applicant were alone with colleagues unsupervised.
• On the other hand, you may have to consider hiring that same male sex offender for a construction position when there are no female employees and all duties are completed in public.
• The law generally allows for extra precautions if the job involves children or other vulnerable populations. This means you are generally not required, and sometimes prohibited, from hiring sex offenders for positions where those populations could be considered at risk.

Ultimately, whether you may legally refuse to hire a sex offender is a fact-intensive inquiry that relies heavily on state laws. If you come across such a situation where you would like to make a job offer to someone with a sex offense on their record but have some concerns, it is wise to first consult with an attorney familiar with employment law for legal advice.

Related Resources:

• What to Do If Sued for Negligent Hiring (FindLaw’s Law and Daily Life)
• Negligent Hiring: Criminals in Nursing Homes (FindLaw's Free Enterprise)
• Can I be Sued Over an Employee's Criminal Record? (FindLaw's Free Enterprise)