Joel Dillard & Associates

Representing Working People

Illegal uses of criminal background in employment decisions

Did you know that it might be illegal for employers to refuse to hire someone because of their criminal background? The Equal Employment Opportunity Commission has issued guidance defining the legal and illegal uses of criminal background information, and many employers are probably in violation and can be subject to a lawsuit.

Arrest records

If an employer refuses to hire because of an arrest that did not result in a conviction, this could be illegal. Anyone can be arrested, and the arrest itself doesn't prove that anyone did anything wrong. So, in addition to the fact of the arrest, the employer would also have to have some kind of proof that the person arrested actually did something wrong, and that this is related to the job the person has applied for.

Convictions, guilty pleas, no-contest and non-adjudications

A conviction - whether after trial, or by guilty plea, or by nolo contendere plea, or even by what is called non-adjudication, is sufficient proof of the misconduct. But it may still be illegal to refuse to hire someone because of a conviction.

This can happen where convictions are treated differently in people of different race, sex, etc. These kinds of cases are similar to many others: the complainant must prove that the race, sex, etc. motivated the decision by showing with examples that the employer treats, e.g., black criminals worse that white criminals in the hiring process. On the other hand, and somewhat ironically, if the employer is too consistent, that is, if the employer maintains any hard-and-fast or consistently applied rules about how convictions are treated in hiring, the employer could be opening itself up to different kind of case, one which challenges the impact of the rule on black people or men or some other protected class.

Zero Tolerance and other illegal rules using convictions

It is this kind of rule case that I want to focus on today. These cases are significantly more complex than other employment discrimination cases.

First, the person challenging the rule must show that there is a rule. This can be as simple as pointing to the place in the handbook where the employer describes its conviction policy - but very often it is not so simple. Employers are often savvy enough to avoid any admission in the handbook, and instead just tell the hiring supervisors that they have an unwritten policy of zero tolerance. In that case, ideally the challenger would have heard the supervisor admit to this at the interview, or even have additional concrete evidence that the policy exists.

Next the challenger must prove the rule is likely to have hurt his class more than others. Black people, for example, should have little trouble with this because the EEOC has frequently referred to the statistics proving this in that case.

At that point it becomes the employer's burden to prove that the rule is job related and consistent with business necessity. One way to accomplish this is for the employer to use their own statistics - i.e., on recidivism, or risk of recurrence, together with a showing that the recurrence would negatively impact the employer. The EEOC has published Uniform Guidelines on Employee Selection Procedures which describe this method. But it is quite difficult to do, and often requires limiting the kinds of jobs impacted to particularly sensitive ones - such as childcare or positions of financial trust - and to particular kinds of convictions related to the job.

The second way to prove this requires showing, in essence, that the rule is not in fact a hard-and-fast one, but that it is actually a targeted screen which considers at least three factors:

  1. The nature and gravity of the crime,
  2. Time elapsed since the crime or sentence served, and
  3. The nature of the job.
In doing so, the employer sometimes must also give notice to the employee of the issue, and an opportunity for the individual to respond and explain why the prior conviction should not disqualify them for the particular job under the particular circumstances.

It seems likely that many employers are not following these procedures and are not giving individualized consideration to the potential employees with convictions. If this is so, a labor lawyer may be able to help. However, be aware that there is a 6-month time limit on bringing these charges, and if nothing is filed in this time the issue cannot be challenged.

To read the original EEOC guidance, click here.


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