Must U.S. Employers Hire Criminals?



A wise person once said that the only constant is change. This sentiment is certainly true of employment practices exposures in the U.S.

One recent development likely to be relevant to a large number of employers is the new Enforcement Guidance from the Equal Employment Opportunity Commission (EEOC) concerning the Consideration of Arrest and Conviction Records in Employment Decisions. The biggest takeaway from this Guidance is that an employer’s use of a person’s criminal history in making employment decisions may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964 (specifically, illegal discrimination based on race and national origin).

The only constant is change, continuing change, inevitable change, that is the dominant factor in society today. No sensible decision can be made any longer without taking into account not only the world as it is, but the world as it will be.— Isaac Asimov

Arrest vs. Conviction

Part of the new Guidance focuses on the distinction between arrest and conviction records:

  • An arrest does not in itself establish that criminal conduct has occurred, and excluding job applicants based simply on an arrest record would be potentially problematic under the new Guidance. (An employer may, however, make an employment decision based on the conduct underlying an arrest if this conduct would make the individual unfit for the position in question.)
  • A conviction record, on the other hand, will generally serve as evidence that an individual engaged in the illegal conduct charged. (In certain circumstances, however, there may be reasons for an employer not to rely solely on a conviction record alone when making an employment decision.)

Are Your Hiring Exclusions Job-Related?

FINEX North America Alert: New Guidance on Hiring Practices

Read more in our FINEX North America Alert: New Guidance on Hiring Practices

Those familiar with the Civil Rights Act and Title VII will know that possession of a criminal record does not afford an individual protected status. But even an employer’s otherwise neutral policy (such as excluding applicants based on past criminal conduct) may disproportionately impact some individuals who are protected under Title VII, and so may violate the law if not job related and consistent with business necessity (disparate impact liability).

In a recent FINEX Alert, we discuss the recommended best practices arising from the new Guidance, along with the interaction of those practices with other federal statutory or regulatory requirements that prohibit individuals with certain criminal records from holding particular positions or engaging in certain occupations [and therefore would seem to mandate the consideration of past criminal behavior when making employment decisions].

But for the typical employer (if there is such an organization), it may be somewhat reassuring to know that there is not always a direct correlation between past criminal behavior and today’s job performance. The Guidance references a study of New Zealand residents from birth to age 26:

[a]dolescent criminal convictions were unrelated to committing counterproductive activities at work [such as tardiness, absenteeism, disciplinary problems, etc.]. In fact, according to the [results of the study], people with an adolescent criminal conviction record were less likely to get in a fight with their supervisor or steal things from work.).

Linking Criminal Conduct to Specific Jobs

This leads to the three factors to be considered in determining how specific criminal conduct may be linked to particular positions:

  • The nature and gravity of the offense or conduct
  • The time that has passed since the offense, conduct and/or completion of the sentence
  • The nature of the job held or sought

It also brings the Guidance to the conclusion that a policy or practice requiring an automatic, across-the-board exclusion from all employment opportunities because of any criminal conduct is problematic because it does not focus on the dangers of particular crimes and the risks in particular positions. Recognizing that, the EEOC “cannot conceive of any business necessity that would automatically place every individual convicted of any offense… in the permanent ranks of the unemployed.”

Without a doubt, though, the new Guidance will create newly perceived challenges for many firms, especially for those without an abundance of resources to help tailor job applications to specific positions and craft uniform response strategies tied to business necessities.

Disparate Impact Liability

A theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.

Under Title VII of the Civil Rights Act of 1964, plaintiffs may sue employers who discriminate on the basis of race, color, gender, religion, or national origin. Employers who intentionally discriminate are obvious candidates for a lawsuit, but the courts also allow plaintiffs to prove liability if the employer has treated classes of people differently using apparently neutral employment policies. The disparate impact theory of liability will succeed if the plaintiff can prove that these employment policies had the effect of excluding persons who are members of Title VII’s protected classes. Once disparate impact is established, the employer must justify the continued use of the procedure or procedures causing the adverse impact as a “business necessity.”

Proof of discriminatory motive is not required, because in these types of cases Congress is concerned with the consequences of employment practices, not simply the motivation. If the employer proves that the requirement being challenged is job related, the plaintiff must then show that other selection devices without a similar discriminatory effect would also serve the employer’s legitimate interest in efficient workmanship.





About Ann Longmore

Ann is Executive Vice President of Willis' Executive Risks practice. Based in New York, she has been with the compa…
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