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Worker’s criminal past won’t immediately get discrimination case tossed

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in Discrimination and Harassment,Employment Background Check,Hiring,Human Resources

When an employee sues you for employment discrimination, it’s natural to want to learn more about the person suing you and whether he may have sued others. That information is readily available.

But don’t expect that even a fraud conviction related to false employment claims will get the case tossed out. Courts bend over backward to help employees have their day in court. You will have to wait until an opportune moment to bring up the conviction. Usually that’s later in the case.

Recent case: Anthrone Cunningham worked for Boda Plumbing and claimed he had been subjected to a racially hostile work environment. The EEOC took up his case and sued. That’s when the company did some checking and discovered that Cunningham had “an extensive criminal record including multiple convictions related to fraud in employment matters.”

The company included the information in its answer to the complaint. The EEOC asked the court to strike the answer as “scandalous as well as immaterial and impertinent.” The court agreed, concluding that at this early stage, the information was “irrelevant to the question of whether he suffered racially discriminatory behavior” at work.

The court did say the company could ask Cunningham later in the process about the convictions in order to challenge his honesty and integrity. (EEOC v. Boda Plumbing, No. 3:07-CV-00400, WD NC, 2007)

Final note: Prevention probably would have been better than relying on the cure in this case. If the company had conducted a background check during the hiring process, it probably would have chosen a candidate without an extensive criminal record for fraud.

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