National Clothesline
National Clothesline
So you don’t want to hire ex-cons?
The Equal Employment Opportunity Commission wants to give applicants with criminal records a better chance of being hired than individuals without a record.
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In particular, the EEOC has taken a legal principle called “disparate impact” to an absolutely ridiculous level.
There are essentially three ways to prove discrimination under the Civil Rights Act.
First, an employee can show direct evidence of discrimination, such as a comment made by a supervisor that is racist, sexist, or otherwise shows that the employer discriminates against a protected group.
Second, an employee can show disparate treatment. If a minority employee can show that he was treated differently than a non-minority employee, especially with respect to discipline for the same infraction, the employee has taken the first step toward proving discrimination.
An employer must then show that there was a legitimate, nondiscriminatory reason for the difference. After that, the individual has the opportunity to show that the stated reason the employer has given is a pretext.
Third, there is disparate impact. In the case of disparate impact, an individual can claim that he was the victim of discrimination if there is a neutral policy that has a disparate impact on a minority group to which he belongs.
For example, a requirement that an applicant have a high school diploma can have a disparate impact on minority groups, who have a higher dropout rate than non-minorities. A height or weight requirement could have a disparate impact on women.
For many years, a requirement that an applicant not have an arrest record has been illegal because it has a disparate impact on minorities, who have a higher arrest rate, even when they are innocent.
The EEOC, however, now wants to apply the arrest record doctrine to criminal convictions.
In particular, the EEOC has implied that an employer can refuse to hire a white employee with a criminal record, but if a minority employee has such a record, the employer must take additional action to find out the nature of the conviction and in effect be able to explain why the criminal record prevented that individual from being hired.
While it is clear that there are more minorities in prison as a percentage than population suggests, it is equally clear that an individual who has been convicted has been given due process. In other words, a court has reviewed the conviction, and guilt is legally established.
The EEOC, however, appears to want employers to “try” the employee again to determine if the crime was sufficient to disqualify him from a job.
The effect of the EEOC’s new guidance, which does not rise to the level of a regulation, is to require employers, if they learn that an applicant has a criminal record, to give that applicant greater consideration than an individual without a criminal record.
This places employers in an awkward position. Typically, a criminal conviction relating to honesty is a good reason to disqualify an applicant, but the EEOC guidance puts this into question.
What if the conviction was for public drunkenness and hitting a police officer? Ironically, the applicant may be protected under the Americans with Disabilities Act for alcoholism, especially if he discloses it early in the application process.
Many employers want to do background checks, but this new EEOC guidance should give them pause. In addition, employers using background checks need to determine ahead of time exactly how they are going to deal with certain convictions.
Many years ago, I had a client who used prisoners on work release to supplement its workforce, and for some reason, it decided it also wanted to do drug testing. I asked the client what it would do if all the employees tested positive, and the president of the company laughed in my face.
All of them tested positive.
Once you have evidence of prior convictions, what do you intend to do with it? You need to think about this in the context of what the person will do for your business. If the job calls for handling money, a conviction for theft will be more disturbing that a conviction for something like public intoxication.
So, if someone on an employment application puts down that he has a criminal conviction, you run the risk that the EEOC will scrutinize your decision not to hire that individual if that person belongs to a minority group.
If that happens, ask the applicant more questions, if qualified, to find out if the conviction is serious and related to the job he seeks. Rejecting the applicant out of hand could result in a charge with the EEOC.
Finally, the EEOC guidance on conviction has been challenged. With luck, a court will quickly determine that the EEOC is wrong. Until then, however, act cautiously.

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Frank Kollman is a partner in the law firm of Kollman & Saucier
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