Q&A with Susan B. Loving: Employers shouldn't ask applicants about past convictions in initial screenings

Q: Can employers be liable for discrimination, for refusing to hire convicted felons?

A: Title VII of the Civil Rights Act prohibits discrimination in employment based on race, color, religion, sex or national origin. The law recognizes that an employer's blanket policy of using criminal records to screen for employment may adversely impact certain minority groups or individuals, based on stereotypes and/or because it discriminates against individual minority applicants.

Q: So felons are denied jobs for a lifetime?

A: Studies show there's a time at which most former criminals are no longer any more likely to commit a crime than the average person. The law thus requires employers' hiring policies relating to criminal conduct must be based on business necessity. As one court said, “We cannot conceive of any business necessity that would automatically place every individual convicted of any offense, except a minor traffic offense, in the permanent ranks of the unemployed.” This is particularly true where the employer's policy disregards how long ago the conviction occurred.

Q: How do I establish a policy regarding this issue?

A: To establish that a policy excluding employees based on criminal conduct is job-related and consistent with business necessity, the employer must show the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. Courts will look at whether a practice or policy bears a demonstrable relationship to successful performance of the job for which it was used, and measures the person for the job and not the person in the abstract. The exclusionary policy must be shown to be necessary to safe and efficient job performance.