Employers May Be Subject to Discrimination Charges If Criminal Background Checks Are Applied Too Broadly

Posted by in Equal Employment Opportunity | Comments Off on Employers May Be Subject to Discrimination Charges If Criminal Background Checks Are Applied Too Broadly

Based on a recent class action suit, employers could be vulnerable to discrimination charges if they apply criminal background checks inappropriately or too generally. The plaintiff in the suit alleged his employer denied employment or terminated employees, including the plaintiff, with past criminal records, which may violate Title VII of the Civil Rights Act of 1964 and various state laws. The employer, or defendant, in the case fired the plaintiff 17 months after being hired because of a previous vehicular manslaughter conviction.

This suit, and employers’ exposure to similar suits, rests on two specific points: Do employees’ criminal pasts make them unfit or unable to do the jobs for which they are hired? Does the exclusion of candidates for jobs, based on their conviction records, adversely affect members of particular ethnic groups?

In terms of that first question, employers can protect their use of background checks and the conclusions they draw from them if they distinguish arrests from convictions. According to The Equal Employment Opportunity Commission’s (EEOC) Policy Guidance on the Consideration of Arrest Records, “arrests alone are not reliable evidence that a person has actually committed a crime.” The EEOC recommends that employers delve deeper into a job candidate’s arrest record to determine the exact circumstances and allow the candidate (or employee) to explain those circumstances from his or her perspective. Only then can an employer understand that the job applicant was arrested for “criminal” behavior and that it may be job-related.

The second point or question relates to actual convictions for crimes committed. The same EEOC commission stated “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population.” The commission concluded that Title VII statues make it illegal for employers to deny employment strictly on criminal convictions. It is legal, however, if the employer can justify a “business necessity,” according to three factors:

  • Nature and gravity of the offense or offenses.
  • Time that has passed since the conviction and/or completion of the sentence.
  • Nature of the job held or sought.

Employers must also be knowledgeable about their state laws that relate to this issue. Some states do not allow employers to conduct criminal background checks or ask job applicants for information about their criminal past. Another state does allow employers to deny employment if the details of a conviction could jeopardize their businesses. For example, a convicted embezzler could be denied a bookkeeping job.

Other steps that employers can take to protect themselves include:

  • Be prepared to provide evidence to substantiate the consideration of criminal records in employment decisions, based on the amount of human and economic risk. If that risk is considerable, then “business necessity” is not an adequate defense.
  • Add a warning or policy statement to employment applications and the employee handbook that clarifies the use of criminal records to determine employment eligibility.
  • Invest in the advice of legal counsel to be compliant with all federal and state statues, relating to this issue.
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