How should companies and professionals treat people who have a past criminal history but who have paid their debts to society by serving out sentences? Is it fair to dismiss someone’s ability to be a good employee solely on the basis of a prior criminal background? How can these people ever have a chance to turn their lives around and become reintegrated back into society, if no employer will give them a chance?
As a professional vocalist and musical entertainer, a number of years ago I formed a partnership with the leader of a band who had an outstanding reputation playing large nightclubs, festivals and private events. This band leader was one of the most gifted musicians and entertainers I had ever worked with, and he and I built a very successful following during the two years we performed together. As a team we both enjoyed many professional opportunities that never would have happened if we had not worked together. Our partnership ended, however, when I was tipped off that he was a convicted felon.
On a personal level, the nature of the crime made it difficult for me to continue to interact with him in the same way. I also felt that he had violated my trust by not disclosing the information. Indeed, the reason he had not disclosed the information to me from the beginning was because he thought I never would have worked with him, and he would have been right. On a professional level, I was concerned that my reputation would be damaged if others found out about his past and I continued to closely associate with him. But I also had to consider that the crime was committed 12 years earlier and he had served his criminal sentence.
At the time this information came to me, we had existing contracts to play many upcoming large and prestigious events. Given the financial and professional opportunities those events presented, I considered whether I could just continue as if I had never learned about the crime. If I disclosed his background to the companies who had contracted us to play, or if these companies found out on their own, many of them may have tried to cancel our performances. Our ability to perform and entertain had nothing to do with his criminal past, but still, I understood why people would be uneasy having a convicted felon entertaining at their party or event. Ultimately I decided that I could not work closely with someone who had violated my trust and engaged in activities that were so contrary to my expectations about tolerable behavior. I made the painful decision to terminate the partnership, and I sacrificed opportunities and earnings, as well as personal friendships because of this decision. It became a significant setback for my music career.
This person may well have been rehabilitated from his past behavior, and he continues to be a superb entertainer for venues that are willing to hire him or that are unaware of his criminal background. Did I make the right decision to discontinue working with him? If everyone reacted the way I did, then no formerly convicted felons would ever be able to work again or become productive members of society. However, I found the nature of his crime so despicable that I don’t know how I could have continued sharing the stage and interacting with him.
Contributed by KS.
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Applying the generalization test, I think your reaction (especially in an employment framework) was ethical. If we shun felons in a professional context, it [will] perpetuate the social stigma of crime and further discourage criminal activities.
Regarding the virtue test, we would have to decide whether we view our society (or our corporation) as forgiving, or one who would forever identify and react differently to former felons. In my experience, employers seem inclined to treat former felons differently, as job applications have a special section to fill out to declare if you are a former felon.
This would indicate, though, that a felony is a crime worthy of lifelong employment discrimination. It’s important to consider that the legal classification of “felony” may not always be a reliable metric for a crime worthy of lifelong discrimination. In your example, of course, you felt the crime was despicable and therefore your personal virtues may not have been upheld had you continued your professional relationship. But what may be classified as a significant crime in one state (say California, for having an open alcohol container while driving) may be perfectly legal in another (like West Virginia). Therefore, the legal classification of the crime may not necessarily be the best benchmark to use when evaluating prospective employees or coworkers.
Given the nature of the situation, I agree with your actions…. Although the band leader may have tried to redeemed himself with good performance, the burden isn’t on you to behave inconsistently with yourself. The fact that he was your business partner gives you the right to know more about him, because you are linking your success to the fact you can depend on him as a trustworthy partner.
Through all the job searches I’ve had throughout my life, almost always, on any job application, there is a required question which asks if you have ever been convicted before. Sometimes they even go as far as asking if you have had any [traffic] violations. Admittedly, it’s tough finding a job when you carry the convicted felon history, but that is a privilege that convicted felons give up when they choose to behave unethically by committing a crime. Therefore as a convicted felon, the band leader already knew that he would always have to check the box of being a convicted felon and that it would hinder his job search. However, I would not say that all employers would refuse to hire felons, so there are still employment opportunities available where they can prove themselves and earn employers/partners trust….
To the greater topic of dismissing a person based on criminal record: This would be an unethical act. If all employers were to dismiss a person with a criminal history, then these same people would never get a job. Granted from the perspective of the employer, this would probably be generalizable, as they achieve their purpose of avoiding people they don’t believe to be “good” and will most likely find someone else who is “good.” However, this would not pass the utilitarian test, as anyone with criminal history would always lose utility from being unable to find a job. This could even snowball by facilitating a former criminal to commit additional crimes which would ultimately decrease the utility of society at large. From a virtue standpoint, the employer is only sticking to their core beliefs and by doing so they are passing the virtue test.
To the specific circumstances you found yourself in, I would agree with JH and would point primarily to the virtue test, as this is a clear delineation on you personally. To have continued working with your former partner would have gone against your grain and from that standpoint would not pass the virtue test in this direction.
This is not a correct application of the utilitarian test. The test is whether KS’s particular act would maximize utility (among available alternatives), not whether a general practice of turning down convicts would maximize utility.
The basic issue here is whether one can be obligated to make a nonutilitarian hire. Let me explain what I mean.
If presented with the opportunity to hire an ex-convict, the employer is ethically required to compare the net expected utility of hiring versus not hiring, taking into account the welfare of the ex-convict as well as the company and its customers. The expected utility of hiring someone with a criminal record may be worse than that of hiring someone you know less about. It may be better to pick an unknown quality than someone you know is risky.
On the other hand, it may be good social policy for employers to take more risk than this when hiring ex-convicts, because this may result in less recidivism. It’s true that the individual employer’s utility calculation must include the risk that an unemployed ex-convict with return to crime. However, if all employers take a greater risk than is individually optimal, more ex-convicts may know they have a decent chance of getting a job and stay clean for this reason.
The difficulty is, neither the utilitarian nor the generalization principle requires one to conform to social policy that maximizes utility. (They may require one to vote for a law that maximizes utility, but that’s a different matter.) The utilitarian principle only cares about the consequences of the individual decision maker’s action, not the consequences of adopting it as social policy. The generalization principle only cares about whether the employer could accomplish his/her purposes if everyone acted on the same reasons.
We can apply the generalization principle and see what happens. Let’s suppose the employer’s reason for not hiring an ex-convict is to avoid a certain level of risk to the company and customers. Would this still be possible if employers always turned away ex-convicts when they presented this level of risk? It wouldn’t if society would degenerate into constant crime. But it’s likely that most employers already turn away ex-convicts when they present a significant risk, and it’s still possible to avoid this risk by hiring someone else.
One might argue that it’s “unfair” to turn away job applicants who have “paid their debt to society.” But I don’t know what “unfair” means. People have very different ideas about what’s fair or unfair, and I don’t know how to tell who’s right.
But then one might ask whether it’s OK to turn away people of a certain race or gender for the sake of maximizing utility. Perhaps customers would prefer to work with employees of another race or gender, and the resulting benefit to the company outweighs the job applicant’s loss in strictly utilitarian terms. Do the above arguments apply? Interesting question.
Your specific case is a little different, because the ex-convict is a partner rather than an employee, and you are already working with him. But I think the above analysis, if it’s correct, still shows that your decision is a utilitarian one. You are not required to maintain the relationship if it is nonutilitarian.
I can’t judge whether terminating the relationship would result in at least as much total utility as continuing to work with him. Your personal discomfort is a factor in the utilitarian calculation, but it’s important to give it no more than its due weight.
Nothing in the case suggests that terminating the partnership would be a breach of agreement.
Virtue ethics could play a role, because you could have a loyalty obligation to your partner. However, because your partner failed to come clean about his past, it is hard to establish a loyalty obligation in this case.
So you must weigh the benefits and costs, to all concerned, of breaking up the partnership. You don’t have to predict the future. You only have to avoid a choice that you cannot now reasonably believe would result in less net utility than the opposite choice.