The Jewish Ethicist: Confidential Ex-Con, Part 1.
Should I tell a business owner that a job applicant has a criminal record?
Q. If I know that a job applicant has a criminal record, should I inform the proprietor?
A. The case of a former criminal can be related to on two levels. At one level, he is the same as any individual: He deserves protection from slander, but at the same time others deserve protection from any damage he may be likely to cause. At another level, there is a public interest involved in this case. We will discuss these levels separately.
Additionally, we cannot discuss here the grave and complex considerations that apply if the applicant's past creates a concern that he may be actually dangerous to others. Here we will relate only to the concern that the person may be dishonest and cause a monetary loss.
As we have written many times, our tradition considers revealing someone's defects or shortcomings a grave transgression. Even casual or innocent gossip is strictly condemned.
However, in some cases our dismay at speaking up has to give way before our responsibility to protect others from harm. The Torah emphasizes the reciprocal connection between these two duties by combining them in a single verse: "Don't go about as a tale-bearer among your people; don't stand idly by the blood of your neighbor" (Lev. 19:16). The first half of the verse forbids gratuitous slander or gossip, while the second half requires us to take active steps to protect our fellow man from harm. The Sefer HaChinukh explains: "If we hear someone saying something negative about his fellow, we shouldn't tell the other 'So-and-so said such-and-such about you.'" But he adds: "unless our intention is to prevent damage and to calm a dispute." (The Sefer HaChinukh refers to one kind of gossip -- telling someone that another has slandered him -- but the same principle applies to other kinds of damaging reports.)
Since only gratuitous slander is forbidden, it is permissible to inform when we fulfill a number of conditions, as explained in the classic work "Chafetz Chaim" by Rabbi Yisrael Meir HaCohen. As we have done in past columns, we will arrange them in a mnemonic ABC format:
ACCURACY - it is forbidden to exaggerate or embellish
BENEFIT - revelation must be the only way to way to obtain some constructive benefit.
CERTAINTY - we must be sure the information is reliable.
DESIRE - the teller's intention must be constructive, not vindictive.
EQUITY - the revelation must not cause undeserved damage to the subject. It's not equitable to protect one person at the expense of another.
In order to fulfill the accuracy and certainty conditions, you must make sure your information is reliable and not based on hearsay, and that you only transmit the basic facts.
In order to fulfill the desire condition, you must examine your motivations and make sure that you are not trying to punish the applicant or get back at him for his past actions, but are only interested in protecting the proprietor.
The benefit and equity conditions require the most careful thought. The fact that someone has committed a crime in the past does not automatically mean that he is likely to cause harm in the future. You are only permitted to reveal information if you have a firm basis to believe that this person will cause loss to the proprietor. If all you know is that he has a criminal record, you don't know enough. People can be convicted of many different crimes, which they commit for many different reasons; they also go through a variety of rehabilitation processes. Some criminals were never bad employees; others only transgressed because of circumstances; yet others have found the inner strength to conquer the drives that originally led them to crime.
You also need to pay attention to the equity condition. If the proprietor's only reaction to your report will be a sober evaluation of the likelihood that the applicant's past makes him an imprudent hire, then your story is not causing the applicant an inequitable hardship. But if there is a likelihood that your story will cause the owner to reject the application outright, or to further publicize this person's past, then you are bringing about a benefit to the owner at the expense of causing damage to the applicant. The laws of slander don't permit such an inequity.
There is also a certain interaction between the "certainty" and "equity" conditions. Normally, we may not reveal any information unless we are certain of its accuracy. So a rumor that a person has been convicted for embezzlement is not enough. Yet such a rumor is in itself a worrisome sign. Reporting on a rumor like this depends in large measure on the equity conditions. If you have heard a rumor that someone is dishonest, you may certainly not state that they are dishonest. But you may be able to tell the proprietor that there is such a rumor, if you know that he is a fair person who will not take the rumor at face value but rather will check it to the best of his ability and give the applicant a fair chance to demonstrate his veracity.
The ethical course of action here is one which is based on a sense of responsibility: One the one hand we may not spread irresponsible rumors or surmises. But in the presence of firm evidence that a person is likely to cause harm it is irresponsible not to provide others with the information they need to protect themselves.
Chafetz Chaim, especially section I:10, II:10.
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