Hiring an Employee with a Criminal RecordMarch 28, 2014 – Articles
Let’s pretend an employer utilizes the following policy when it comes to hiring job applicants: “We don’t care if you are Caucasian, African American, Hispanic or Latino—if you have ever been arrested or convicted of any crime, then you will not be hired.”
Does this policy discriminate among applicants based on race? The easy answer is no. After all, the employer is only looking at the applicant’s criminal record, not the applicant’s race. However, the Equal Employment Opportunity Commission (“EEOC”) does not believe the answer is that simple.
According to the EEOC, statistics show that “about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.” Thus, when an employer has a blanket policy that disfavors applicants with criminal backgrounds, the employer is indirectly discriminating against minorities.
This is what the EEOC refers to as a “disparate impact.” At first glance, the employment policy does not appear to discriminate based on race or national origin. However, when the policy is applied, it has a disproportionate and adverse impact on members of a minority group. Accordingly, the EEOC claims that such an employment practice may be a violation of Title VII. The EEOC’s stance on the issue applies to private employers, as well as federal, state and local governments.
Statistics show that 9 out of 10 employers subject at least some, if not all, of their job applicants to criminal background checks. Which makes sense, right? Employers want to avoid issues with theft, fraud, workplace violence and negligent hiring. Even the EEOC itself conducts criminal background checks as a condition of employment!
So what can employers do to ensure compliance with the EEOC? Employers cannot have a blanket policy, even if it is “race neutral,” that excludes all applicants from being hired due to convictions or arrests. Based on the current EEOC guidance, employers with such policies are risking a charge of racial discrimination for deciding not to hire a minority who may have a conviction or two in the past.
Rather, employers need to be able to show that a decision to not hire an applicant based on a criminal background was “job related and consistent with business necessity.” This can usually be shown if employers follow a two-step process.
First, the employer should conduct a “Targeted Screen.” Here, it is imperative that employers link specific criminal conduct with risks that are related to the duties of a particular job position. For example, an old drug possession conviction may have no real relevance to a retail position now. Conversely, a recent embezzlement conviction would be problematic for a job where handling money is required. Based on the nature of the job, employers should only exclude those applicants who have certain criminal histories from working in a particular job position.
Second, the employer should conduct an “Individualized Assessment” of all the applicants who were excluded through the targeted screen. Obtain information from the applicant about the reported criminal history and allow the applicant to explain any special circumstances regarding the criminal conduct. For example:
- Consider the facts or circumstances surrounding the offense or conduct
- Look at the number of offenses or convictions
- Consider how long ago the activity occurred
- Look at employment and character references
- Consider length and consistency of previous employment
- Determine any rehabilitation efforts, such as education, training or serving a sentence
Further, the EEOC recommends that employers do not ask about convictions or arrests on the actual job application. Rather, the EEOC suggests that an employer wait until late in the hiring process to ask about a criminal background—this allows an employer to objectively assess the applicant’s qualifications and experience before turning to the criminal history. Then, when an employer does inquire into criminal history, the EEOC recommends that an employer only ask about convictions or arrests that are related to the job in question.
Additionally, employers should understand how the EEOC differentiates between arrests and convictions:
- Arrests do not always establish that criminal conduct occurred. Many arrests do not result in criminal charges, or the charges could have been dismissed. Therefore, an exclusion based on an arrest, by itself, is not job related and is not a business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. Essentially it is the conduct, not the arrest, that is relevant for employment purposes. Convictions, however, will usually give an employer sufficient evidence that a person engaged in a particular conduct. This does not mean that the employer is free to rely on the conviction record alone when making an employment decision. Rather, the employer must look into the circumstances (nature of the crime, nature of the job, results of individualized assessment) and not make a decision on the conviction record alone.
- As a final point, employers also need to understand that these same principals apply when determining whether to promote an existing employee. For example, let’s say a Hispanic employee of fifteen years applies for a promotion to an executive position. The employer conducts a background check because it views a criminal record as an indicator of untrustworthiness and irresponsibility. It turns out that the employee was arrested for disorderly conduct twenty years ago. The employer’s policy does not allow any person with an arrest record to hold an executive position. Accordingly, the employer denies the employee’s promotion. The EEOC believes this situation would likely be a violation of Title VII.
Employers need to take off the blinders and look closely at what criminal background reports reveal. It is important to measure the applicant for the specific job in question. Long gone are the days where an employer can rely on a defense of “we never hire anyone with a conviction or arrest record.”
In August of 2013, a U.S. District Court in Maryland dismissed a lawsuit brought by the EEOC that alleged Freeman, Inc., an event-marketing company, unlawfully relied upon criminal background checks. The Judge ruled that Freeman’s use of criminal checks appeared reasonable and suitably tailored to its purpose of ensuring an honest workforce. Freeman limited its review to convictions in the last seven years and did not penalize applicants for arrests that did not result in convictions. Also, the Judge held that the EEOC did not have reliable statistics to prove that Freeman’s policy had a disparate impact on minorities.
Although this case was a victory for employers who conduct background checks, the EEOC has shown no signs of backing down from its position. In fact, the EEOC recently filed similar complaints against Dollar General and BMW.
Federal, state and local laws may prohibit employees with certain criminal records from holding particular job positions. For example, federal law prohibits a person with certain types of convictions from working as an airport security guard if the conviction is less than ten years old. West Virginia law prohibits a person with a felony conviction from holding a position as an emergency call dispatcher. The EEOC may find that an employer uses an unfair hiring policy even though the policy is required by state law.
Laws can vary greatly depending on the employer’s state and the job position. For this reason, employers should consider having an employment lawyer review their particular hiring policy to determine if it falls within the appropriate guidelines.
About the Authors Kevin Nelson and Ashley French are partners in Dinsmore & Shohl’s Charleston, WV office. Alex Greenberg is an associate in Dinsmore’s Morgantown, WV office.