EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies law firm in Edmond.
Q: I heard an employer can be liable for discrimination, for refusing to hire convicted felons. Is that true?
A: As we have discussed the past two weeks, Title VII of the Civil Rights Act prohibits discrimination in employment based on race, color, religion, sex or national origin. Employers may be liable for discrimination based either on “disparate treatment” or the “disparate impact” their policies have on people protected by Title VII. Employers’ use of criminal records to screen for employment or to discharge employees can result in significant liability.
If an employer treats a white person with a criminal conviction differently from a person with a comparable record who is a member of a minority group, the decision may be based on stereotypes about criminality, rather than qualifications for the position. As we noted last week, this is an example of disparate treatment.
Disparate impact may occur when an employer’s policies or practices, while neutral on their face, effectively screen out a protected group, unless the employer demonstrates the policy is job-related under a test of business necessity. Three factors are generally considered by the courts: The nature and gravity of the offense, the time that has passed since the offense or conduct and/or completion of the sentence, and the nature of the job held or sought.
Courts recognize some level of risk is inevitable in all hiring, and hiring policies may concern the management of risk, regardless of their basis. The question is whether criminal record exclusions accurately distinguish between applicants who pose an unacceptable level of risk and those who do not.
For instance, conviction for drug possession as a teen more than a decade before applying for a job may not be indicative of a current risk for most positions. On the other hand, a recent conviction for child molestation or child abuse would clearly justify refusal to hire in a child care setting.
However, in both examples, the decision whether to hire is not based on a blanket elimination of candidates based on any felony conviction, but an assessment of the job in relation to the type of crime for which the candidate was convicted, and when it occurred.
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.
SUSAN B. LOVING is an attorney for Lester, Loving & Davies P.C. More information is available at lldlaw.com. Send questions to firstname.lastname@example.org.