Company sued over this common hiring practice
August 21, 2008 by Sam NarisiPosted in: Background checks, Law, Special Report, Uncategorized
To keep employees and customers safe — and avoid “negligent hiring” lawsuits — many companies have policies against hiring convicted criminals for some jobs. But those policies can lead to their own legal problems.
Take an EEOC complaint filed last week against Madison Square Garden. An applicant was offered a job, pending a clean background check. The offer was then rescinded when the company found out she’d been convicted on assault charges five years ago.
The reasoning behind the complaint: Screening out people with criminal records has a bigger effect on minorities, since they’re convicted of crimes at higher rates than whites. That makes it unlawful discrimination, the woman and her attorneys say.
Criminal record checks OK?
Does she have a case? There’s no word from the EEOC yet on whether it’ll take up the case. But the agency had previously come out and said criminal record checks could have an unlawful “disparate impact” on some protected groups.
Last year, the agency issued a set of guidelines on the use of criminal records in hiring. The keys to staying out of trouble: consistency and business necessity.
A blanket policy barring those with criminal records would be illegal bias, according to the EEOC. Employers should take into account:
- the nature and severity of the conviction
- the time that has passed since the conviction, and
- the job the person is seeking.
Also, lawful policies need to be consistently enforced for all positions covered.
In a court case last year, a newly hired employee was let go when his boss found out he’d been convicted for murder several decades before.
The job he wanted? He was applying for a bus driver position, which meant he would have spent most of his time with passengers, away from direct supervision.
The court ruled for the company, saying the policy was necessary for keeping those passengers safe (Cite: El v. Southeastern Pennsylvania Transp. Authority).
Tags: Background checks, convictions, criminal records, EEOC, Equal Employment Opportunity Commission
August 21st, 2008 at 1:32 pm
Nice post Sam. I think there are couple great angles on this case involving a company’s right to conduct background checks and make hiring decisions based on the outcome of the results coupled with an obligation not to discriminate in an organization’s hiring practices. I’ve written a couple posts about this case that you and your readers might enjoy.
http://blog.employeescreen.com/2008/08/19/madison-square-garden-sued-over-background-check/
http://blog.employeescreen.com/2008/08/21/madison-square-garden-sued-over-background-check-revisited/
August 22nd, 2008 at 11:23 am
In the past 6 months we have withdrawn 6 job offers due to criminal background checks: 3 White males, 1 Hispanic male and 1 Pacific Islander female. The felonies were assault, drug possessions, fraud and theft. I believe criminal activity knows no race boundaries.
August 22nd, 2008 at 11:35 am
Interesting article that has moral concerns.
In our justice system once a criminal has “done their time” should they not be given a fair chance to seek employment that will keep them from going to prison again? In the old days prisons were run by the church and were called penitentiaries from the word penance which is a Catholic term which means doing something as a means of soul searching and to repent from one’s sinful ways.
Obviously you cannot be naive with ex-cons like allowing a convicted child molester to be a school teacher. However, if an ex-con with an assault conviction applies for a job as a trash hauler, should he not be given the job if he has the required qualifications?
This may be an interesting blog exchange today. I look forward to your comments.
August 22nd, 2008 at 12:19 pm
If the company did hire the applicant knowing she had the conviction and the employee assaulted someone else, then the company would be sued because they knowingly hired someone that had already been convicted. It’s a no win situation.
August 22nd, 2008 at 12:52 pm
She was offered a job PENDING a CLEAN background check and she KNEW she didn’t have a clean background! That would have been the time to explain to HR the special circumstances surrounding the conviction, if any.
August 22nd, 2008 at 2:46 pm
Am I understanding this article correctly that this woman and her lawyer want the employer to ignore that she has a relatively recent criminal conviction because she is a minority? Nothing about circumstances, severity of the conviction, etc. Assault is a pretty broad term - anywhere from punching someone in the heat of an argument to beating someone to a pulp. She knew when she was informed of the need of a clean background that she didn’t meet that requirement. Race should have nothing to do with this decision. After all, it wasn’t when they made the job offer in the first place.
August 22nd, 2008 at 4:46 pm
I agree with Paul — if we push people who have been covicted and paid their dues away from the work system then we, as a society, inadvertly will be pushing them again to commit a crime. The way to fight crime is by keeping people positively productive and involved in society.
August 22nd, 2008 at 4:49 pm
The issue is the risk any company incurs when they hire an individual with a known criminal record of assault and subsequentlly the felon injures another employee in a repeat performance. It is naive to believe any employer will not have to justify and explain the reasons why such an individual was hired and placed in a position putting other employees at risk. Unfortunately in today’s world Companies have little choice; they must protect themselves against [potential legal action. This has nothing to do with race and/or ethnic backgrounds of convicted felons.
August 25th, 2008 at 10:44 am
Very interesting and timely post. We require all employees to submit to fingerprinting and to background checks for driver’s license records and education verification. On our application it states that they will be subjected to these checks if offered a position and that the offer is pending the results of the checks. Our application also asks if the applicant has any points on their license and if they were convicted of a felony. We require a clean license because our employees are out in the field driving our clients in company vehicles. And since we deal with children, we do the criminal checks. Recently, we offered a position to someone who explained to the hiring manger that he had a conviction from 12 years ago. We did go forward and fingerprint him and get the felony infomation to confirm what had been told to us. Management decided to hire him based on the fact that the conviction was very old and also on what this person had accomplished since then. We do state that having a conviction does not mean a job offer won’t be made.
I think this is a grey area and that it should be handled on a case-by-case basis. There are a lot of things to consider. I will look forward to others opinions.
August 25th, 2008 at 11:16 am
Several different points of view have been posted on this issue whether employers should/should not hired when a potential employee has a conviction on their record. This particular article addresses the “disparate impact” of background checks upon minorities in general. Not the the conviction was years ago, not that the conviction should have no impact on the job applied (as Paul posted). I totally agree with Judy that each issue should be addressed on a case-by-case basis. We don’t have the information on what job she applied for, how much time she served for the conviction and when she was released, and what she has accomplished since then. If she could show that she was discriminated against because of her race when other non-minority applicants have been hired with similar circumstances,then she would have a discrimination case. But to file a lawsuit simply on the basis that background checks are keeping minorities from being hired seems wrong. It seems to me that having the criminal conviction is what is keeping a person (of any race) from being hired. Committing the crime in the first place is a choice that each person made and sometimes the reprecussions far outlast the time served. This isn’t that last job available anywhere, nor should the employer be OBLIGATED to hire anyone with a conviction when the terms of the offer of employment was made available to the applicant before a decision was made. I would be very interested in whether the EEOC takes up this case.
August 26th, 2008 at 2:47 pm
As I agree that someone with a criminal history should be looked at more closely before any hiring is done. There are those out there who have unfortunately made some poor decisions in life that they will never live down, but have tried to live right since. I believe that if an applicant meets all requirements and shines through during an interview; that HR should have a discussion with that person regarding the offense and take the time to find out the circumstances and then see where the company stands. In a perfect world we could all admit our past mistakes with no fear of judgement by people who know nothing of our history but unfortunately that will never be the case.
assault-A crime that occurs when one person tries to physically harm another in a way that makes the person under attack feel immediately threatened. (Actual physical contact is not necessary; threatening gestures that would alarm any reasonable person can constitute an assault). Compare battery.