Many Americans have criminal records. The EEOC and local government agencies want to help former convicts start over. The movement to “ban the box” on job applications—the box those with criminal histories are supposed to check—is part of that trend. So is the EEOC’s position that barring applicants with criminal records from employment may amount to discrimination based on race or ethnicity.
Employers that refuse to consider any applicant who has a criminal record risk litigation.
Smart employers build in flexibility when it comes to past criminal history. They can, for example, meet with applicants to discuss the specifics of past transgressions and make informed hiring decisions. Doing so may help if an applicant sues.
Recent case: Noris, who is black, applied for a job as a master electrician with a school district in Texas. The application requested disclosure of past criminal records and included a statement that honesty on the application was required. Noris didn’t reveal his criminal past, which apparently included several drug convictions.
The school district ran aand found the convictions. It invited Noris to a meeting to discuss the findings, where he grew angry. He was not hired.
He applied again when another spot opened, this time revealing his record. Still, he wasn’t hired—this time because of his previous lack of candor.
He sued, alleging disparate impact. The school district pointed out that it had hired individuals with criminal records after meeting with them and discussing their unique situations and didn’t simply bar everyone. For example, it had hired someone with a single drug conviction for marijuana sales, while Noris’ record included heroin sales. The court tossed out the case. (Rogers v. Pearland Independent School District, No. 14-41115, 5th Cir., 2016)