Depending upon the nature of their businesses, some employers have traditionally implemented and maintained a policy against hiring individuals who have been convicted of felony crimes. However, after examining this issue, the United States Equal Employment Opportunity Commission (EEOC) declared that using arrest and past conviction records as an “absolute measure” to prevent an individual from being hired could limit the employment opportunities of some protected groups. As such, the records should not be used in this manner as a blanket ban. Specifically, the Commission appears to be concerned about the impact such an exclusive policy would have on racial groups like Blacks and Hispanics, who are statistically “over-represented” among convicted felons.
Case-by-Case, Multi-Factor Approach
Thus, the EEOC promotes a “case-by-case” analysis with regard to prospective employees who have criminal histories. And while there is no federal law that clearly prohibits an employer from inquiring about arrest and conviction records, such records cannot be relied upon as the sole basis for evaluating whether the applicant is fit for the job. Therefore, the EEOC asserts that information relating to felony convictions should prevent an individual from obtaining employment only to the extent that it is evident that the applicant cannot be trusted to perform the duties of the position when considering: 1) the nature of the job; 2) the nature and seriousness of the offense; and 3) the length of time since it occurred.
Avoid Blanket Ban on Hiring Felons
It is conceivable that the EEOC’s initiative to protect certain racial groups who are disproportionately convicted of felonies from suffering indirect employment discrimination may conflict with an employer’s’ desire to place “low risk” workers in positions of trust. Employers also seek to protect themselves from liability from potential negligent hiring claims which could arise from employing individuals with criminal records. However, the Commission’s position with respect to the use of arrest and conviction records is that those records should not automatically disqualify even a serious offender without further inquiry as to how and why the particular offense would render the applicant unsuitable for the job. So, in light of this, a blanket policy of not hiring individuals who have committed even violent felony offenses could create exposure for an employer in the event a rejected applicant files an EEOC complaint on the basis of race discrimination arising from automatic exclusion from employment due to a felony conviction.
For example, consider the hypothetical wherein a day laborer who shoplifted over $1,000.00 worth of clothing 10 years ago applies for a construction job but is automatically disqualified based upon an absolute ban on hiring convicted felons. In that case, pursuant to a complaint by the applicant, there could be some potential for the EEOC to scrutinize the policy in furtherance of its interest to protect certain racial groups from job discrimination. Hence, employers should be mindful of ways to balance their interests in hiring “low-risk” employees with the applicant’s right to be free from discrimination.
Allen & Gooch is providing this legal update for informational purposes only. This article should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. You should consult your own attorney concerning your particular situation and any specific legal questions you may have.