When A Criminal Background May Not Be Enough To Exclude An Applicant From Employment

Dimitra S. Scott Edmonds Lawyer

Criminal background information is another valuable tool utilized by companies making employment related decisions, such as hiring and termination.  Should your company consider this information when making critical employment decisions?  Absolutely, but do so informed about the risks and with a policies in place to ensure your company does not inadvertently subject itself to liability under Title VII.

The Equal Employment Opportunity Commission recently issued new guidelines on the use of Arrest and Conviction records in employment decisions.  In short, despite feeling justified in an employment decision based on a criminal history, the decision may nevertheless violate Title VII.  The following are two examples of potential inadvertent violations:

Example 1

Candidate A and Candidate B have each been arrested in the past on a charge of domestic violence, but neither candidate was ultimately convicted.  Candidate A is a woman.  Candidate B is a man.  Assuming their qualifications are otherwise equal and the employer extends an offer to Candidate B, Candidate A may have a claim against the employer.

Why?  Employers cannot treat applicants with the same criminal records differently because of their race, color, religion, sex, or national origin.  This is an example of “disparate treatment discrimination.”  This does not mean the employer was not justified in its hiring decision, but the basis for the decision must be well documented.

Example 2

Employer considers 10 applicants for employment: 8 applicants have nonviolent criminal convictions in the last 10 years and the remaining applicants have no criminal record.  Of the applicants with criminal records, 6 are members of a protected class based on their race or national origin.   The remaining applicants are caucasian men, in their mid-twenties.  The employer dismisses all 8 applicants with criminal records.

What is the problem?  Under Title VII, even where an employer applies its policy to dismiss applicants due to criminal records without exception, the exclusions may still operate to disproportionately exclude people of a protected class.  Here, of the 10 applicants, the employer’s policy resulted in dismissal of 6 members of a protected class (e.g., 60% of the applicant pool).  This issue is referred to as “disparate impact discrimination”.

To justify its practice in light of the disparate impact, the employer must show that dismissal of the applicants was “job related and consistent with business necessity”.  For example, if these were applicants for a job as a bank teller and the convictions of each dismissed applicant related to theft, there may well be a “job related and consistent with business necessity” sufficient to excuse the disparate impact of the employment decision.   These issues must be carefully considered to mitigate the risks associated with Title VII litigation.

The bottom line: Employers should mitigate their risk of legal exposure with sound practices and policies.  Where potential risk is identified, consult with legal counsel. We are here to help—contact Beresford Booth’s Business Group.

Beresford Booth (425.776.4100), www.beresfordlaw.com

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