Are You Discriminating Against Ex-Cons?

Written by Robert G. Brody and Rebecca Goldberg on May 15, 2012

Refusing to hire ex-convicts may violate federal prohibitions against race and national origin discrimination, according to new enforcement guidance from the Equal Employment Opportunity Commission.  Because black and Hispanic individuals are arrested and convicted at higher rates than other groups, the EEOC reasons that discrimination on the basis of a criminal background may have a disparate impact on members of these groups. 

 Disparate Treatment Versus Disparate Impact

One kind of discrimination claim that could arise occurs when members of different groups are treated differently with respect to their criminal backgrounds.  This is called disparate treatment.  For example, if a black applicant and a white applicant both were convicted of auto theft two years before applying to work for your company, it would be disparate treatment discrimination to disqualify the black applicant on this basis, but not the white one.  As with all employment policies, you should ensure that similar employees are treated similarly, without regard to their membership in protected classes.

 The other kind of discrimination claim is disparate impact.  This occurs when a policy that is neutral on its face results in a group of employees being disadvantaged.  In this case, a policy against hiring individuals with criminal records would be neutral on its face, but could give rise to a disparate impact claim based on race or national origin.  A policy that yields a disparate impact, however, can be applied if it is “job related and consistent with business necessity.”  Therefore, you must consider whether your screening criteria meet this standard and whether the same results could be achieved in a different way that does not create a disparate impact.  Policies that automatically disqualify anyone with a criminal record are generally unlawful.

 Further Points to Consider

 To ensure your policy will pass scrutiny, you should consider the nature of the crime, the time elapsed since the crime occurred, and the nature of the job.  For example, a conviction for identity theft is far more relevant when hiring a payroll manager than a truck driver.  But if the identity theft conviction was 20 years ago, it may be too remote for consideration even for the payroll position.  There are no absolute rules to follow; it is all a judgment call.

Although an individualized assessment of your rule to each individual case is not required, the EEOC recommends it as a way of ensuring all relevant information is taken into account and nothing more.  You should consider the facts and circumstances of the offense, the number of offenses, the age of the individual at the time of the offense and now, evidence that the individual has performed similar work without engaging in criminal conduct, rehabilitation, employment history, character references, and other information relevant to determining whether the individual poses a real risk.

A few final points should be considered.  First, the EEOC warns against using arrest records because an arrest does not prove the conduct occurred.  If you have independent knowledge of the conduct and wish to take action based on the underlying conduct, that is not unlawful.  Second, state laws vary regarding how criminal convictions can be used and when background checks can be performed.  Due to state law concerns, asking about convictions on a job application is not advisable.  Finally, you should keep criminal record information confidential.

If you discover an employee or applicant has a criminal conviction and would like to take action based on it, consulting with legal counsel can help you avoid a discrimination claim.  Legal counsel can also review your policies to ensure they comply with state law and the EEOC’s guidance.

 Another Sign of the Obama Strategy

As with many other acts of the Obama Administration, this enforcement guidance expands the scope and enforcement of an existing law, Title VII, without enacting new legislation.  More than ever, employers need to pay attention to the actions of administrative agencies to determine their obligations under the law and whether those obligations have been expanded.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More