Q. We currently have a policy against the hiring of anyone with a felony conviction. Can you shed some light on whether this policy is legal?
A. It’s probably not legal to have a blanket policy that bars the employment of any applicant because of an arrest or conviction.
Although Title VII does not prohibit discrimination on the basis of conviction records, the EEOC and courts have concluded that excluding individuals from employment on the basis of their conviction records may have an adverse impact on certain minority groups in light of statistics showing that they are convicted at a rate disproportionate to their representation in the population.
Just because a company cannot disqualify individuals because of criminal histories doesn’t mean that they can never be used a factor. If an employer collects arrest or conviction information, it must do so consistently. Employers should assure applicants and employees that honestly providing criminal histories will not result in an automatic disqualification from consideration.
If a policy concerning arrest or conviction records disproportionately affects minorities, an employer may nevertheless maintain the policy if it can prove a business need for it based on an employee-by-employee analysis of the relationship between the conviction and the ability to perform the job.