DISCRIMINATING AGAINST CRIMINALS IN YOUR WORKFORCE
QUESTION: CAN THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION (“EEOC”) CHARGE MY COMPANY FOR DISCRIMINATION IF WE FOLLOW STATE LAWS PROHIBITING US FROM HIRING PEOPLE WITH CRIMINAL RECORDS?
ANSWER: THE EEOC SAYS THAT COMPLYING WITH STATE OR LOCAL LAWS DOES NOT SHIELD AN EMPLOYER FROM LIABILITY FOR DISCRIMINATION CAUSED BY EXCLUDING CRIMINALS FROM YOUR WORKFORCE!
You follow state and local law, you try to protect your other employees and the public by not hiring criminals, and the Equal Employment Opportunity Commission (“EEOC”) sues you for discrimination! How can you win?
Damned if you do, damned if you don’t.
Criminal history background checks are required in all fifty states and the District of Columbia for several occupations. Nurses, daycare providers, school employees, and elder-care workers are often not allowed to have criminal records by state laws.
Thus, for many employers, state law requires that they discriminate against applicants with certain criminal convictions. You would think that complying with state law would protect a company from liability for discrimination under federal law! You would be wrong because “the mandates of state law are no defense to Title VII liability [of the 1964 Civil Rights Act].” Gulino v. N.Y. State Education Department, 460 F.3d 361, 380 (2d Cir. 2006).
The example that the EEOC gives in the April, 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions (“Enforcement Guidance”) is that a county prohibits all individuals with criminal convictions from working for the county. An African American who the EEOC calls “Chris” was convicted of felony welfare fraud 15 years ago. Chris has had no further problems with the law, however. Chris applied to be an animal control officer to respond to citizen complaints and handle animals. The county discovers the felony welfare fraud conviction and rejects Chris’s application.
Chris files a discrimination charge with the EEOC and the EEOC finds disparate impact based on race. The EEOC also finds that the exclusionary policy (required by county law) is not job related and is not consistent with business necessity. Therefore, the county cannot justify rejecting everyone with felony convictions from employment. The county is liable for discrimination through an unlawful employment practice by following local law.
If federal laws prohibit the employment of people with certain criminal records, that is okay even if it causes discrimination. If state or local governments try to do the same thing to prevent convicted felons from holding certain jobs, however, the state and local laws may be preempted by Title VII of the Civil Rights Act of 1964, according to the EEOC.
The EEOC recommends that employers not even ask about convictions in employment applications. Really?! So you don’t even ask if the guy has been convicted of violent gun crimes? That’s going to look good for you when the uninvestigated employee shoots a bunch of co-workers! Or maybe you didn’t bother to ask on the application whether there were any convictions of felony fraud and then the previously convicted employee steals from your customers. Oops!
Some of the “best practices” offered by the EEOC make more sense, however. For example, it makes sense to train the Human Resources Department to prevent employment discrimination in violation of the Civil Rights Act. The Personnel Department needs to be sensitive to whether even legally mandated exclusions of employees due to convictions are job related and consistent with business necessity. (One would argue that complying with state or local laws is always a business necessity.)
Developing a Policy
The EEOC correctly says that a well-thought-out policy for the use of criminal background information is important. You need to develop written policies and procedures for screening applicants for employment based on criminal conduct. You should identify the essential job requirements and conditions and determine what specific criminal offenses might make someone unfit for particular jobs.
You should identify what criminal offenses will exclude job applicants based on actual evidence that prohibiting criminals is job related, and document what evidence you relied upon. Similarly, determining a policy of when old convictions are no longer relevant is important. Again, document what you used to determine that a fraud conviction nine years ago will disqualify an applicant, but the fraud conviction from ten-and-a-half years ago will not. Having the written justification for your policies and procedures and a record of the research you used in drafting the policies and procedures will be important.
Still Between a Rock and a Hard Place!
EEOC Commissioner Constance Barker said, “All this new guidance does is to put business owners between a rock and a hard place: conduct criminal background checks to protect your employees and the members of the public you serve and you bear the risk of having to defend your action as discriminatory; don’t conduct the background check and you take the risk that an employee, or a member of the public will be harmed.”
Good luck explaining to your State Attorney General that you violated the state law against hiring the convicted felon because you were worried that excluding felons from your workplace might be discriminatory and violate the federal Civil Rights Act!
Mike King is a founding partner at the Phoenix Arizona law firm of Gammage and Burnham. This material appears here with Mike’s permission. To learn more about him or for help with questions on this issue please reach him at firstname.lastname@example.org. Mike’s full bio is also available here: http://www.gblaw.com/people/attorneys/?attorney_id=3 where you can read more about his extensive experience on a variety of litigation and real estate related issues.