It’s a tough call for any hiring manager: when confronted with a candidate who has a disability, do you ask for a criminal background check as you normally would, or do you waive it, to prevent any appearance of discrimination?
The answer may surprise you.
Skipping the Check Is Discriminatory
The basis of anti-discrimination laws around the world is that individuals are not treated differently because of their ability, ethnicity, religion, sexual preferences, marital status and other factors that are outside of their choice.
If you were to waive the criminal background check for a candidate because of their disability, you would in fact be discriminating in two ways: firstly, by treating them differently to able-bodied candidates, and secondly by requiring more from able-bodied applicants. Either of these forms of discrimination could get you in trouble.
Over and above all of this is the fact that disabled people want, as far as is possible, to be treated the same as everyone else. They don’t want special treatment, and they are likely to resent what you might think is a kind gesture.
The short answer? Do the check.
The second important fact that you might want to consider is that while we all think it’s distasteful and couldn’t possibly imagine anyone actually perpetrating disability fraud, it does happen.
Whether it’s to access social welfare benefits that aren’t due to them, or to gain sympathy, there are people out there who do fake disabilities for personal gain. It’s not all that easy to do, and it’s not as common as some would have you believe, but it does happen, and it could happen to you.
In many cases, a disabled candidate may be just one of a large pool of varying candidates applying for a job you advertise. In other cases, you may be eligible for state or Federal incentive programs, such as tax breaks or access to bid opportunities for hiring a certain number of disabled staff members.
Whatever the reason, there are likely to be times when you need to verify that a candidate is indeed disabled. This is particularly true when it’s a so called “invisible disability” like a mental health issue, or a congenital heart defect.
It’s not illegal to ask for verification of disabled status, including medical records or letters from doctors, as long as this information is not going to be used to exclude a candidate, and as long as the candidate agrees to disclose their information. Remember that employee medical records are covered by very strict privacy laws, and you do need their express permission to do any investigating. The same thing applies to a criminal background check for any employee.
In our modern world, it’s widely accepted that people with a variety of disabilities can be contributing, valuable members of society, and assets to your company. It never hurts to formulate a diversity policy, that sets out your goals for hiring and retaining people who might be differently abled.
If there’s any doubt that this is a worthwhile exercise, remember that Steven Hawking has been in a wheelchair for decades, and he’s still one of the smartest men on the planet!