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There was a WGEM segment featuring “Job Hunting” in Quincy on the March 10, 2010 program. One of the interviewees stated that “qualifications” for their jobs required people without any “misdemeanors or felonys”.
Employers beware! It made me cringe to hear that comment said as a blanket candidate disqualifying statement. I sincerely hope that employer has taken steps to justifiably document the reasons for an across the board disqualification of candidates with arrests, misdemeanor and/or felony convictions.
Let me be clear. Employers can and should, of course, review an applicant’s history to avoid charges of negligent hiring. However, my reading of the law and the evolving EEOC rules is that employers cannot, without justification, deny an applicant a chance at a job on the basis of a conviction without considering whether the offense bears a relationship to the job being sought.
Viable documentation has always been critical in hiring and is getting more so. But more than ever defensible policies and careful record keeping are particularly important in the screening/selection process today. So employers must take steps to document their good faith in selection practices because employers across the country are being intensively targeted against blanket disqualifications of candidates.
State Action
One good example comes from New York State which, by the way, first addressed this blanket disqualification problem more than 30 years ago with laws protecting the employment rights of people with criminal convictions.
Now in a recently completed investigation, the attorney general of New York found that ChoicePoint, a nationally known employee screening company, was involved in creating an online job application system for employers that automatically disqualified thousands of applicants who disclosed criminal convictions. Moreover, investigators found that the company had recommended to employers that they disqualify applicants based on sealed or dismissed convictions and legal outcomes that are regarded as violations — not crimes — under state law. One ChoicePoint client violated state law by withdrawing conditional job offers after information that should not have been taken into account turned up in background checks.
In a separate investigation, the attorney general found that RadioShack also had ignored the law by rejecting job applicants whose violations had been sealed, set aside or deemed to be minor.
The New York cases raise the disturbing possibility of “copy cat” investigations and lawsuits for blanket disqualification across the country. That the practices may be widespread will be irresistable to plaintiffs lawyers and enforcement agencys. (see http://www.nytimes.com/2010/01/19/opinion/19tue3.html?th&emc=th )
Opinions of Human Resource Professionals
Most Human Resource professionals are quickly becoming very wary of the landmines currently buried in the candidate selection field.
In a study by the Society for Human Resources Management (Burke, M.E., 2004 Reference and Background Checking Survey Report: A Study by the Society for Human Resource Management, Alexandria, VA: Society for Human Resource Management, 2006.) the findings were that:
“… if not done properly, using criminal records as a risk management tool may expose employers to other types of claims, including disparate impact claims by African American and Latino applicants. It is widely recognized that bans on hiring individuals with criminal records have a disparate impact on African Americans and Latinos.”
Case Law Holdings
The case law seems to reflect the same concern as the SHRM study. The Third Judicial Circuit’s decision in the case EL v. SEPTA opened a new era in Title VII discrimination lawsuits on the basis of criminal conviction disqualification.
In summary, El held that”
“ … an employer’s assumption that ex-offenders possess a higher propensity for workplace crime is not sufficient to shield them from liability. Rather, an employer must show that its practice of excluding applicants with criminal histories “distinguishe[s] with sufficient accuracy between those who pose a minimal level of risk and those who pose a higher level.” In other words, an employer must demonstrate that it has analyzed the risk posed by an ex-offender with respect to the specific job in question to escape liability. “
EEOC Enforcement and Rules
On October 1, the Equal Employment Opportunity Commission filed a discrimination lawsuit against Freeman Cos., a nationwide convention and corporate events marketing company. Since at least 2001, Freeman has rejected job applicants based on their credit history and if they have had various types of criminal charges or convictions, the suit claims. The EEOC says these exclusionary practices are not job-related or justified by business necessity.
And in March, the EEOC settled a lawsuit against Franke Foodservice Systems, which refused to hire a black applicant who disclosed a felony conviction on his application even though the company hired a white applicant a year earlier who made a similar disclosure.
A spate of EEOC and private lawsuits are pending against other companies for unlawfully denying employment to people with criminal records or bad credit histories.
EEOC hearings on screening practices in November 2008 included expert testimony that the results relating to prior convictions are not good predictors of employee behavior or performance. In addition to greater EEOC scrutiny of criminal record screening practices, a growing number of states now prohibit or limit pre-employment arrest inquiries.
Further, recently, the EEOC issued guidance regarding the steps employers must take to avoid liability for disqualifying those with criminal convictions.
The EEOC advises employers to undertake three steps in determining whether to screen out a candidate with a criminal conviction.
First, the employer must consider the nature and gravity of the offense.
Second, the employer must consider the length of time that has passed since the conviction.
Third, the employer must consider the relationship of the conviction to the particular duties and responsibilities of the job in question.5
The EEOC stipulates that employers may reject job applicants with criminal convictions only when warranted by the type and severity of the offense, the amount of time that has passed since the conviction and the nature of the job.
Opinions of Employment Law Specialists
Lawyers who specialize in employment practices are very concerned. Angela Ryan, an employment law specialist with Fisher and Philips in Atlanta warned also that if an employer has not been conducting criminal checks and then decides to add them to the screening process, the employer must then conduct criminal checks not only for new hires going forward, but also for existing employees. "Another lawyer employment specialist Melissa E. Pierre-Louis, an associate at Outten & Golden LLP, who represents employees in litigation says:
“The massive rise in incarceration rates in the past few decades, coupled with efforts by advocates and the Obama administration to help offenders “reenter” society, means that employers will likely see a significant increase in the number of ex-offenders in their applicant pool in the coming years. Employers who continue to apply blanket bans on hiring ex-offenders or who fail to implement hiring criteria that take into account the nature of the offense and its relationship to the job face significant exposure to charges of race discrimination. “
Implications for Staffing
Knowledge is power in the selection and hiring profession. It is not getting any easier for employers but navigating the murky waters of how the selection, screening and the background check process may legitimately be handled without incurring liability requires employers armed with knowledge of the laws protecting applicants and the rights employers have in disqualifying candidates. There is a way of both complying with the law and protecting their companies from costly public blunders in hiring.
Moreover, employers cannot afford to not undertake the task of learning their rights in background checking an applicant. The risk is just too high.
Blanket disqualification of people with convictions is dangerous. Simply put, now is the time for employers to align their policies with evolving state and federal requirements.
Proper planning, legal review, and prompt implementation are critical to avoid liability for adverse selection practices. As a minimum first step, employers and human resource specialists should revisit their hiring policies in light of the EEOC guidance.
Employers may indeed be required to document their process against potential claims. Employers may be at seropis risk disqualifying an applicant because of his criminal conviction unless the employer undertakes a case-by-case evaluation of each applicant and can show that there is a “direct relationship” between the applicant’s prior offense and the employment sought or that employment of the applicant would pose an unreasonable risk to property or the public.
What do you employers and human resource professionals think?
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