Q&A with Susan B. Loving
Employers should establish policy on hiring, past convictions
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.
Q: Any advice for employers in regard to the hiring process?
A: As a best practice, the Equal Employment Opportunity Commission recommends employers not ask about convictions in the initial screening process, or on job applications. If and when they make such inquiries later in the process, the inquiries should be limited to convictions for which any exclusion would be related to the position in question. The EEOC also recommends employers who are considering screening a potential employee based on a conviction give notice to the individual that he has been screened out, and an opportunity for the individual to demonstrate the exclusion should not be applied due to his particular circumstances. Employers should carefully examine their policies to ensure they comply with Title VII. If they have any doubt about the policy, they should consult legal counsel.
PAULA BURKES, BUSINESS WRITER