Opinion: Help Wanted: Criminals Need Not Apply

By Rob Capobianco

Partner

Jackson Lewis LLP

This Opinion piece appears in the Aug. 12 print edition of Transport Topics. Click here to subscribe today.

Every business wants to hire the most qualified and least risky applicants. Criminal background checks help employers reduce liability from negligent hiring lawsuits and potentially lower the risk of workplace theft and violence while, in the case of most transportation and logistics businesses, staying in compliance with federal and state laws and regulations.

However, the Equal Employment Opportunity Commission’s 2012 “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964” seeks to narrow an employer’s ability to use criminal background checks.

For example, a policy prohibiting the hiring of applicants with convictions of any kind is not acceptable to the EEOC, which warns employers of the potential for discriminatory “disparate impact” under Title VII that may result from such hiring policies.

Unlike disparate treatment, which occurs when an employer intentionally discriminates against an employee based on a protected characteristic such as race, disparate impact occurs when, albeit unintentionally, an employer’s policies or practices have a disproportionately adverse effect on a protected minority group. Both disparate impact and disparate treatment are prohibited by law.

In the case of disparate impact, the burden rests on the employer to prove its policy or practice is job-related and consistent with business necessity.

While the new guidance doesn’t prohibit criminal background checks, it does suggest that employers take care how they use the information and write their policies. EEOC particularly stresses the importance of allowing for an individualized assessment of job candidates.

The following examples demonstrate how employers run afoul of the EEOC’s guidance.

• Exceeding the scope of a federal- or state-imposed restriction: Larry, an African-American man released from prison 11 years ago, applies for a driving position with We Haul Hazmats Inc. To comply with the USA Patriot Act, the Transportation Safety Administration and Department of Transportation ban from such positions individuals released from prison in the past five years. But the carrier has a rule prohibiting anyone released from prison within the past 15 years from transporting hazardous materials. A background check reveals Larry was released only 11 years ago, so he isn’t hired.

Larry files an EEOC charge alleging the company’s policy has a disparate impact based on race and is not job-related and consistent with business necessity. The carrier claims the policy is job-related but can’t offer evidence demonstrating an elevated likelihood of criminal activity by someone crime-free for more than five years but fewer than 15. The policy might ultimately prove permissible, but the EEOC probably will conclude there is a disparate impact based on race and the policy is not job-related for the position in question and consistent with business necessity.

• Blanket exclusions: Moe, a Latino convicted of insurance fraud five years ago, applies to Logistics “R” Us for a warehouse position. The company has a rule prohibiting the hiring of anyone convicted of a felony. A background check reveals Moe’s criminal record, so he files a charge with the EEOC alleging Logistics “R” Us’ policy has a disparate impact based on national origin and is not job-related and consistent with business necessity.

Logistics “R” Us insists the policy is job-related but can’t show that convictions for all offenses renders all applicants unacceptable for all jobs. Again, while a court might hold otherwise, we reasonably can expect the EEOC to determine there is a disparate impact based on national origin and that the policy is not job-related for the position in question and consistent with business necessity.

• Targeted exclusion based on job relatedness and consistent with business necessity without individualized assessment: Charles, an African-American, has driven successfully for Driving-By-Night Co. for 10 years. When the company is bought by Driving-By-Day Inc., the new owner requires all DBN employees to reapply for employment with DBD.

Because it transports valuable cargo, DBD has carefully tailored a policy that prohibits hiring anyone convicted of theft or fraud in the past three years, with no individualized assessments of applicants.

Charles reapplies for his job, but a background check reveals he pleaded guilty to a tax-evasion felony within the past year. He is promptly fired.

Charles asks his manager to consider his unblemished 10 years of service to DBD for the same job, but he’s told the decision is final because of company policy.

Charles files a charge with the EEOC alleging DBD’s policy has a disparate impact based on race and is not job-related. Because Charles has a record of trustworthiness, the EEOC probably will take the position that the once-targeted exclusion is not job-related and consistent with business necessity. As with the prior examples, we can anticipate that, regardless of what a court ultimately concludes, the EEOC probably will determine there is a disparate impact based on race and the policy is not job-related for the position in question and consistent with business necessity.

These few examples show how employers may create liability through the use of background checks and policies regarding criminal convictions. Because there are various state and federal laws and regulations regarding criminal background checks, no single policy will work for all businesses or all positions within one business. When an employer doesn’t allow individuals to explain past convictions or applies a broad policy that does not consider an individualized assessment of the applicable positions, the EEOC may file a lawsuit for disparate impact discrimination.

Working with experienced employment counsel on properly narrowing policies regarding the use of criminal background checks to specific positions can reduce liability.

Jackson Lewis Partner Jake Schwartz contributed to this column. Jackson Lewis LLP is a nationwide law firm dedicated solely to representing management in workplace law. The authors are with the firm’s Atlanta office.