LAW AND DISORDER: The EEOC Attacks Employer Use of Criminal Convictions in the Hiring Process

Posted on September 25, 2013 in Compliance, Employment Litigation

 

On June 11, 2013, the EEOC sued Dollar General and BMW for barring from employment persons who have been convicted of certain crimes.  The EEOC argues in these cases and other suits that a policy barring persons from employment who have served time in jail is illegal discrimination because minorities are more likely to be incarcerated than Caucasians.  The EEOC wants the federal judiciary to declare these policies illegal and to reward money damages to the victims of the alleged discrimination.

The EEOC’s aggressive litigation – with our tax money – evokes serious debate no matter your politics.   But there are also some important practical tips for employers to consider so that they avoid becoming part of this on-going battle.

A Short History

The origin of the EEOC’s recent lawsuits is traced to Griggs v. Duke Power decided by the Supreme Court in 1970.  Duke Power openly discriminated against African-Americans before passage of Title VII barring African-Americans from any job except laborer.  Effective July 2, 1965, the not so coincidental date Title VII became effective, Duke Power adopted a rule that any applicant had to score satisfactorily on two aptitude tests and have a high school education to be anything other than a laborer.  Whites who already worked for the company (other than as laborers) were grandfathered out of the rule.  The policy looked neutral but was designed to discriminate against African-Americans who at that time were subjected to an inferior education system.  Griggs sued claiming the “neutral policy” was really an arbitrary barrier to employment and discrimination against African-Americans.

The Supreme Court agreed with Griggs and established what is called “disparate impact discrimination”: a neutral policy that has a discriminatory impact on a protected group is illegal discrimination if it is not proven by the employer to be job related and of business necessity.

The EEOC’s Unhelpful “Guidance”

Fast forward to April 25, 2012, when the EEOC, relying in part on Griggs, issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.  In its Guidance, the EEOC declared that an employer’s bar against hiring persons with criminal records is no different than the policy the Supreme Court struck down in the Griggs case.  But the Guidance goes further suggesting that employers should:

 

  • Not ask applicants if they have been convicted of crimes until after a job offer has been made; and

 

  • Make an individualized assessment whether a particular criminal conviction is job related and consistent with business necessity.

 

 

What Should Employers Do?

  1. Consider criminal convictions a factor, but not an absolute bar, to employment.

 

Employers should amend their hiring policies to provide that a criminal conviction is not an absolute bar to employment but will be considered among other factors.  To be very clear, I am not suggesting that an applicant’s criminal conviction should be ignored. A criminal conviction – for a wide variety of crimes — reveals that a person has a tendency of violence or theft.  Similarly, an employer should not ignore and an applicant will have a difficult time explaining multiple convictions.

In contrast, some crimes happen so long ago that an employer should disregard the conviction.  The conviction might relate to stupid antics of a person in their youth.  A person’s positive work history since the conviction may demonstrate a desire to be a productive member of society or that the prior crime truly does not reflect who the person is now.

I recommend that employers adopt a policy that includes language such as:

The Company requires that all job applicants and all personnel placed with the Company are subject to a background check, including a criminal history report.  A job applicant or temporary employee’s prior criminal conviction (felony or misdemeanor) does not necessarily bar him or her for employment. The Company will conduct an individual assessment of the job position and the criminal record history to determine if the prior felony conviction disqualifies the person for the position.  Applicants with a history of criminal conviction are encouraged to share any information, which they believe, demonstrates their qualifications for a position despite any prior criminal conviction.   Applicants may consider providing references or other information about their post-conviction education or rehabilitation efforts.  Failure to disclose a conviction, however, is considered a dishonest act and will bar a person from employment or result in termination upon discovering the undisclosed conviction.

 

  1. Conduct background checks and ask applicants to disclose criminal record histories when they apply for a job.

 

Ignoring criminal record histories makes no sense.  Employers judge applicants on many criteria and past history is a critical part of that analysis.  Pretending it doesn’t matter, as the EEOC suggests, is silly.

Also disturbing is the EEOC’s insistence that a crime must be job related to be worthy of consideration.  I know of no job that has any relationship to murder or rape, but does that mean an employer should (as the EEOC seems to suggest) disregard the conviction in the hiring process.  Similarly, most people do not work with minors.  Does that mean a conviction for child abuse or child pornography is less relevant than a conviction for embezzlement?  I think the EEOC would say, “Yes.”  But most employers (and most Americans) would say, “Absolutely not.” As a father of three, my vote is obvious.

With that said, some states require employers to wait until late in the selection process to ask about convictions.   For example, Hawaii, Massachusetts, Minnesota, and Rhode Island have so-called “Ban the Box” laws.  These laws preclude employers from asking about criminal history on a job application.  Indiana, New York, Pennsylvania, and Wisconsin take the issue a further level by making it illegal (with exceptions) to discriminate with regard to criminal record histories.

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