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Prepare to justify policy barring former criminals

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in Discrimination and Harassment,Human Resources

Does your organization have a blanket policy of refusing to hire applicants with criminal records? If so, make sure you can explain exactly why.

Discrimination alert: Because minority applicants may be statistically more likely to have criminal records, requiring a clean criminal-record history may have a disparate impact on a protected class and violate Title VII’s race discrimination policies. A rejected applicant can sue, and the potential employer will have to prove its policy helps identify applicants who pose an unacceptable level of risk and those who do not.

That means you should be able to explain, clearly and concisely, what risk you think former convicts pose in the positions you want to bar them from and how your policy reduces that risk. In practice, that means:

  • You evaluate each position for the risk that potential employees would pose. Jobs that allow access to customers’ homes may justify requiring cleaner criminal records than jobs with limited public contact.
  • The policy clearly relates to minimizing the perceived risk of employing applicants with a particular type of conviction. Barring applicants with traffic violations for a fast-food job is probably excessive, while barring applicants with violent convictions may be justified.

Recent case: Douglas El, a member of a protected minority, went to work for a paratransit bus company. Nearly 50 years earlier, at age 15, El had been convicted of second-degree murder for his role in a gang fight and served three years in prison. El was fired after the company discovered the conviction. It had a blanket policy barring anyone with a violent conviction because it feared for its disabled riders’ safety.

El sued, alleging the ban had a disparate impact on minorities. But the company presented evidence linking past criminal behavior with recidivism. It also explained that its customers were statistically more likely to be victimized than were nondisabled persons. Because El couldn’t prove that the age of his conviction made it unlikely he would commit another violent crime, he lost the case. (El v. Southeastern Pennsylvania Transportation Authority, No. 05-3857, 3rd Cir., 2007)  

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