Blanket Policies Against Hiring Ex-Cons Could Mean Trouble for Employers
RANDALL PENTIUK, ESQ.

Jane Doe was 19 years old when she was charged with prescription fraud.  The court allowed her to enter into a diversion program and was able to avoid  having a criminal record that would follow her for the rest of her life.  She went on to have a productive career as a nursing assistant until she was fired after seven years of employment at a nursing home.  The Department of Community Health informed her that she was barred for life from working in long-term care because of the drug offense in her youth.  

Blanket policies that cover the hiring and firing of people with arrest and conviction records could mean trouble for employers.  The Equal Employment  Opportunity Commission (EEOC) recently released guidance on the employer use of arrest and conviction records on April 25 for the first time in two decades.  The issue is that, while universally barring workers with criminal histories is not discriminatory on its face under Title VII of the Civil Rights act, the EEOC has   determined that such hiring and employments do have a disparate impact on   people of color. 

In 1977, the courts first stated that blanket exclusions for criminal records were discriminatory.  In Green v. Missouri Pacific Railroad, the 8th Circuit determined that employers must consider the nature and severity of the offense, the amount of time elapsed since the offense or completion of the sentence, and the nature of the job held or sought.  The EEOC adopted that as the standard and didn’t change it for more than 20 years. 

Then, in 2007 the 3rd Circuit released an opinion on El v. Southeastern Pennsylvania Transportation Authority, which emphasized the importance of factual analysis in criminal record exclusions.  With the advent of the Internet and technology it is easy for employers to check criminal history, although many of these databases are inaccurate or incomplete.  Even when the records are accurate and complete, the EEOC is declaring that employers need to do an individual assessment on prospective hires who have been convicted of crimes, consistent with Green. 

The EEOC further reinforced its stance that employers cannot have blanket policies that reject every applicant with a conviction, as that would be deemed disparate impact.  The most prudent, conservative approach is for employers to not consider arrest records that do not result in convictions, as Michigan law prohibits employers from asking about or maintaining records regarding misdemeanor arrests that did not result in convictions. 

This begets the question: How risky is it to even ask about criminal convictions?  Applying the court’s test, if an employer performs a background check and a criminal conviction comes up, then the employer will have the burden of proving whether the conviction played a part in their hiring decision.  The negative consequence to the EEOC’s investigation may result in a disincentive to run background checks at all.  A possible consequence of stopping employers from using criminal background checks is that potential employees with criminal backgrounds may be able to use their positions to commit crimes.  Employers are also concerned about liabilities from employees with prior criminal history.  For example, a prospective employee who has been convicted of assault may have no other convictions on his record, but if he assaults a customer the employer may be liable as they were aware of the employee’s past criminal history. 

The EEOC does not forbid employers from using such information in making a hiring decision, it just has to be relevant to the position.  There are still many employers putting themselves at risk of being scrutinized by the EEOC, who has said for years that employers must treat every applicant similarly.  Now the EEOC is changing their position, and mandating that employers must do individual assessments and decide each case on its own merits.