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Refusal to Hire a Felon May be Grounds for Lawsuit

June 10, 2013

It's long been known that a criminal record could hinder one's chances of landing gainful employment.
But if a person is denied employment on the basis of a prior felony, is that grounds for a lawsuit?

Historically, our Los Angeles employment attorneys would have answered no. However, the Equal Employment Opportunity Commission has filed a lawsuit against two employers whom they say screened out all job applicants with criminal records. This practice, the EEOC contends, amounts to a disproportionate amount of African Americans being denied jobs.

The agency is suing a BMW manufacturing facility in South Carolina on the grounds that it allegedly violated Title VII of the Civil Rights Act by utilizing and implementing a criminal background check policy where the end result was workers being fired and others never being hired. A separate lawsuit was filed against retailer Dollar General in Chicago for the exact same reason.

The government contends that the criminal background check policy of the company is not related to the job and it isn't consistent with necessity in the business.

BMW's policy has been in place since 1994. It denies job opportunities to employees and contractor employees with certain types of serious convictions. The suit was brought on behalf of contractor employees with criminal convictions that were more than seven years old. BMW's policy, the government contends, has no time limit, is a blanket exclusion and lacks any individualized assessment as to the gravity and nature of the crimes or how old the cases are and how they relate to the nature of the employees' work.

The case arose after a transitional period during which the contractor's agreement with BMW was terminated and workers had to re-apply for the positions they'd held at BMW for years. The contractor's criminal background check policy had only gone so far as to check convictions in the last seven years. During this re-application period, several workers were terminated after it was learned they had older felony convictions that nonetheless violated BMW's policy.

With Dollar General, the lawsuit was brought on behalf of a worker who was denied employment after disclosing she had been convicted six years earlier of possession of a controlled substance. This was despite the fact that she had worked for four years with another retailer in the same kind of position as the one for which she was applying. The Dollar General store's policy was to deny employment to any worker with a criminal conviction in the last decade.

Convicted felons are not a protected class under Title VII. However, race is. The EEOC advised employers back in the 1980s that certain types of employment screening policies that deny employment to certain protected classes at a disproportionate level could be in violation of the law.

It's worth noting that the EEOC's anti-discrimination employment lawsuits have spiked dramatically under the Obama administration - from 50 back in 2006 to 600 as of 2011. Part of that has to do with priorities that were already outlined under the Bush administration, but were limited because funding had been cut by 25 percent. Obama restored that funding and the EEOC was allowed to continue pressing forward with its agenda.

There is nothing in the law that prevents employers from inquiring about a person's previous arrest record or prior criminal convictions. But the EEOC advises that the use of these records as an absolute - something that would inevitably limit employment opportunities of certain protected groups - does not align with the spirit of the law and can't be used that way.

The agency advised that rather than issue "blanket rejections" of anyone who has a history of crime, employers must give the individual a chance to explain the circumstances of the arrest and/or conviction. Based on that, the employer should make a "reasonable effort" to consider whether the explanation is reliable and whether such a conviction might affect the applicant or employee's ability to do his or her job.

Los Angeles Employment Attorney VINCENT HOWARD at HOWARD LAW can help. Call toll-free at 1-800-872-5925 or send us a message online.

Additional Resources:
EEOC Files Suit Against Two Employers for Use of Criminal Background Checks, June 11, 2013, Press Release, Equal Employment Opportunity Commission

More Blog Entries:
California Discrimination Case Results in $7.5M Settlement, May 28, 2013, Los Angeles Employment Lawyer Blog