Blanket policies against hiring ex-cons could get employers into big trouble

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By Carol Lundberg
Dolan Media Newswires

DETROIT, MI — Jane Doe was 19 years old when she was charged with prescription fraud. She altered the quantity on a painkiller prescription she received for tooth pain. To make things right after her youthful mistake, she entered a diversion program and was able to avoid having a criminal record that would follow her for the rest of her life.

Or so she thought.

Ten years later, she was a mother who had been working as a nursing assistant for 10 years, said Miriam Aukerman, of the American Civil Liberties Union of Michigan, which is representing Jane Doe.

After seven years of employment at a nursing home, Doe was fired because the Department of Community Health said she was barred for life from working in long-term care, because of the drug offense.

As a result, her employer is being sued by the Equal Employment Opportunity Commission.

Such blanket policies regarding hiring — and firing — of people with arrest and conviction records could land employers in hot water. The EEOC released guidance on the employer use of arrest and conviction records April 25. It was the first time in two decades the EEOC has addressed the issue.

The problem is that while universally barring workers with criminal histories is not, on the surface, discriminatory under Title VII of the Civil Rights Act, the EEOC has determined that such hiring and employment policies do have a disparate impact on people of color, according to Aukerman.

It was a 3rd U.S. Circuit Court of Appeals case that brought the long-ignored issue to the EEOC s hot-button list, said Gary Chamberlin, employment lawyer for Miller, Johnson, Snell & Cummiskey PLC in Grand Rapids.

Back in 1977, the courts first stated that blanket exclusions for criminal records were discriminatory. In Green v. Missouri Pacific Railroad, the 8th Circuit determined that employers must consider the nature and severity of the offense; the amount of time elapsed since the offense or completion of the sentence; and the nature of the job held or sought.

The EEOC adopted that as the standard and didn’t change it for more than 20 years, Chamberlin said.

Then, in 2007, the 3rd Circuit released an opinion in El v. Southeastern Pennsylvania Transportation Authority, which emphasized the importance of factual analysis in criminal record exclusions.

That opinion was very critical of the EEOC for not updating its guidance in decades, Chamberlin said, adding that much had changed in 20 years.

Records access

In 1987 not many employers were checking criminal history,  Chamberlin said. But today, the Internet and technology allow employers to pretty easily check someone s criminal history. There are also many more third-party vendors who do this than ever before.

Unfortunately, Chamberlin said, many of those vendors use databases that are inaccurate or incomplete.

But even when the records are accurate and complete, the EEOC is making it clear that employers need to do an individual assessment on prospective hires who have been convicted of crimes.

You can t make employment decisions based on arrests, Chamberlin said.  There have been some big cases against employers who lump arrests and convictions in the same bucket. It may seem like a no-brainer, but there are employers who do that.

The EEOC further reinforced its longstanding position that employers can’t have blanket policies that reject every applicant with a conviction, Chamberlin added.

That will be deemed disparate impact,  he said.

Jennifer Sabourin, in Miller, Canfield, Paddock and Stone PLC s Detroit office, has always advised clients to be cautious about asking prospective employees about arrest records, even before the guidance was released.

The most prudent, conservative approach is for employers to not consider arrest records that do not result in convictions,  she said.  Michigan law already prohibits employers from asking about or maintaining records regarding misdemeanor arrests that did not result in convictions.

The EEOC’s new guidance has now cited an employer s policy in which an employer excludes applicants based on an arrest without a conviction as an example of a policy that is inherently not job-related and therefore prohibited.

So then, the question becomes: How dangerous is it to even ask about criminal convictions?

What becomes important is what you have knowledge of,  Sabourin said. If you do a background check, and a criminal conviction comes up, the burden will be on you to prove whether you did use it or didn’t use it in making a hiring decision.

To run a check or not?

Thomas Brady, in Clark Hill PLC s Detroit office, said the threat of an EEOC investigation might be a disincentive to run background checks at all.

So you stop employers from using criminal background checks, and then you have people with criminal backgrounds who use their positions to commit crimes,  Brady said.

Determining what s relevant can be difficult, he added.

For example, Brady said, a prospective employee committed an assault seven earlier, and since then he s had no other convictions.

He may have contact with customers. If he assaults a customer, you could be liable,  Brady said.  My argument as a defense lawyer could be, if there s no criminal background check, there s no liability. But do you want to put people in the field who would beat up on your customers?

The EEOC doesn’t say that employers can t use such information in making a hiring decision. It just has to be relevant to the position, said Linda Burwell, of Detroit-based Nemeth Burwell PC.

First, she said,  [t]his is EEOC guidance. So that doesn’t mean you can t ask about arrests and convictions. You just have to be prepared to defend yourself in a lawsuit if you do.

She pointed to a case in which the EEOC failed to prove that a Michigan employer, Peoplemark Inc., had violated Title VII when it maintained a policy that denied hiring or employment of any person with a criminal record.

The litigation went on for months.

In the end, Peoplemark prevailed when the EEOC couldn’t produce a statistical expert to rebut one of the defendant s experts.

On March 31, the U.S. District Court for the Western District of Michigan ordered the EEOC to pay Peoplemark $750,000 in attorney fees and expert witness fees.

But it was still long and messy litigation, Burwell said.

Some employers exempt

Then there are employers who are statutorily required to disqualify workers with criminal backgrounds, Burwell said. She added that the EEOC recognized there are some state law preemptions — particularly in professions in heath care, education and day care, finance and transportation — in which workers must be excluded for felony convictions, or may not be able to obtain licensure or certification as a result.

But still, there are a lot of employers putting themselves at risk of being scrutinized by the EEOC, Burwell said; 92 percent of employers do criminal background checks.

For years, the EEOC has said that you have to treat every applicant similarly, Burwell said.  Now it s saying you have to do individual assessments. That is contrary to what they’ve been saying for years.

It took Burwell years to get her clients to the point where they treated all applicants similarly.

Now, she said,  I have to help them narrow their practices to allow for individual assessments.