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Refusing to hire former criminals: Is it race discrimination?

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in Discrimination and Harassment,Employment Law,Hiring,Human Resources

by Mindy Chapman, Esq.

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

A recent Pennsylvania court ruling shows that across-the-board “no ex-cons” policies can quickly run into legal trouble unless you can prove the restriction for a specific position was “job-related and consistent with business necessity.”

Because minority applicants are statistically more likely to have criminal records, requiring a clean criminal-record history for all jobs could have a “disparate impact” on minorities and thus violate Title VII’s race discrimination policies.

Case in point: A bus company that caters to disabled customers hired Douglas El, who is black, as a driver. But a few weeks later it fired him after learning he’d been convicted of second-degree murder in 1960 for his role in a gang fight. He’d served three years in prison.

El filed a race discrimination lawsuit, alleging the company’s ban on hiring convicts had a disparate impact on minorities. The bus company won because its policy barred applicants who had a violent conviction (it feared for the safety of disabled riders). And the company presented evidence linking past criminal behavior with recidivism. (El v. Southeastern Pennsylvania Transportation Authority, No. 05-3857, 3rd Cir., 2007)

Lesson learned

Stay away from across-the-board bans on hiring anyone with a criminal record. Consider each case individually.

The EEOC’s Compliance Manual on Race and Color Discrimination says employers must “be able to justify [banning hiring based on a conviction] as job-related and consistent with business necessity. This means that, with respect to conviction records, the employer must show that it considered the following three factors:

“1. The nature and gravity of the offense.

“2. The time that has passed since the conviction and/or completion of the sentence.

“3. The nature of the job held or sought.

“A blanket exclusion of people convicted of any crime thus would not be job-related and consistent with business necessity.”

So, when faced with an applicant with a criminal record, evaluate the position for the risk that potential employees would pose. For example, jobs that allow access to customers’ homes may justify cleaner criminal records than jobs with limited public contact.

Also, take into account the nature of the offense and how it relates to the position. Barring applicants with traffic violations for a fast-food job is excessive, while barring applicants with violent convictions may be justified.

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Mindy Chapman is an attorney and president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial.

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