Employment Commission Emphasizes Illegal Discrimination Against Those With Criminal Pasts

According to a recent federal employment directive, the rules surrounding criminal records and hiring practices aren’t so simple

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By Kirsten Swann

Story Created: Jun 26, 2012 at 5:55 PM AKDT

Story Updated: Jun 26, 2012 at 6:06 PM AKDT

ANCHORAGE - An open criminal case closed the door to a potential job for one local woman.

In a winding Facebook post, she explained how ongoing court proceedings for a misdemeanor charge had caused a potential employer to metaphorically turn her away at the door. “They said, ‘Well, you may get incarcerated and we need someone who will stick around,'” she wrote.

But according to a recent federal employment directive, the rules surrounding criminal records and hiring practices aren’t so simple. The April document published by the Equal Employment Opportunity Commission includes dozens of specific, circumstantial requirements, but all boiled down to another, more historic document: the 1964 Civil Rights Act.

“A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group,” the guidelines explained.

By refusing to hire applicants with a criminal background, the commission said employers would illegally bar a disproportionate number of certain races from work.

According to the Department of Justice, in 2008 Hispanics were arrested at three times their proportion to the general population. While African-Americans comprised 14 percent of the population, they made up 28 percent of all arrests. One in seventeen white men are expected to spend time in prison during their lifetime, compared with one in six Hispanic men and one in three African-American men.

Patty Vecera, an employment and labor attorney with Turner and Mede, P.C, said the statistics mean employers should be especially conscious of across-the-board bans on hiring applicants with criminal histories, which would affect disparately high numbers of African-American and Hispanic applicants.

There’s only one way businesses could safely deny a job-seeker based on their criminal past, she said.

“It has to be job related and consistent with business necessity,” Vecera said. “That’s the language they use: The courts generally follow that.”

If a fire department, for example, required employees to be able to carry at least 100 pounds up several flights of stairs, the provision would rule out many female applicants by virtue of physical build, but Vecera said it would pass EEOC muster if the department could prove it was a necessary part of the job.

Similarly, she said criminal records could only be used to disqualify candidates if the particular offense or history as a whole would negatively affect an employee’s ability to perform the job applied for.
“They don’t want employers to just say ‘Okay, we’re not even going to consider you,’” Vecera said.

Many potential employees are unaware of the federal ban on refusing employment based on criminal history, but Vecera said most employers she had worked with were careful to avoid sweeping rejections and treat each application on its own merits.

“It’s a case-by-case situation,” she said.
 
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