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Is a Policy of Not Hiring Convicted Felons Race Discrimination?

Friday, August 16, 2013 @ 12:08 AM
Brian Montague

In what he suggested was a victory for common sense, last week a federal judge in Maryland dismissed a race discrimination lawsuit filed by the EEOC in Equal Employment BMW-DGOpportunity Commission v. Freeman (D. Md. 8/9/13) .   The EEOC argued that since “African Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population,” employers wishing to avoid violating Title VII should have job-related reasons for screening out convicted criminals.

The EEOC has filed a number of lawsuits against companies who conduct criminal background checks on new hires, including against Dollar General in Illinois and against BMW in South Carolina. The EEOC contends that rather than applying a blanket rule of exclusion for convicted criminals, employers should consider the circumstances and make individual determinations. The EEOC encourages employers to take three factors into account: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense, conduct and/or completion of the sentence; and (3) the nature of the job sought.  If the employer is inclined to exclude the applicant on account of the criminal history, then the EEOC contends that the employer should provide an opportunity for the individual to “demonstrate that the exclusion does not properly apply to him.”

The opinion in Freeman included this criticism of the EEOC’s position:

“By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.”

The Freeman case will not be the final word.  District courts nationwide will face this issue and, depending on the judge hearing the case, will agree or disagree with the EEOC’s hard-line position. It will then be up to the appellate courts to have the final say.

In the meantime, employers need to understand that criminal background checks are being targeted by the EEOC.  Employers should be prepared by treating each case individually and by documenting the rationale in each hiring decision involving someone with a criminal history.

Written by Brian Montague

Brian Montague

A fourth generation Hattiesburg native, an Iraq and military veteran, and a 1983 graduate of the University of Mississippi Law School, Brian Montague has established an AV rated, well-respected neighborhood law practice focusing on trying cases in state and federal court, corporate and transactional work, insurance defense and coverage, personal injury and wrongful death, residential construction and development issues, and estate probate and administration.