As concerns about workplace violence grow, more employers are beginning to use private criminal background checks, according to David Fortney, an attorney with Fortney & Scott LLC, a Washington, D.C., employment law firm, speaking at the May 20, 2010, session of the National Employment Law Institute’s Employment Law Workshop in Washington. In relying on such checks in making hiring decisions, employers must exercise caution, he advised.

“Adverse-employment decisions based on the candidate’s arrest record are generally improper and may lead to liability for discrimination under Title VII and state anti-discrimination laws on either a disparate treatment or adverse impact theory,” he said.

In addition, the Equal Employment Opportunity Commission (EEOC) takes the position that the use of criminal conviction records has an adverse impact on racial minorities and is therefore unlawful, absent a business necessity.

According to the EEOC, prior conviction may be considered if job-related, according to the following three factors:

• The nature and gravity of the offense.
• How old the conviction is (last year versus 20 years ago, for example).
• How the job relates to the type of crime committed (e.g., a convicted embezzler seeking an accountant’s position).

Further, according to the EEOC’s Policy Guidance, employers who consider arrest records in hiring, must not only evaluate those three business necessity factors, they must also evaluate whether the applicant actually engaged in the alleged misconduct.

Since business justification rests on issues of job-relatedness and credibility, a blanket exclusion of people with arrest records “will almost never withstand scrutiny,” according to the EEOC.

State Laws

Most states allow private employers to base employment decisions on criminal background checks, but draw a distinction between arrests and convictions—reliance on convictions is permissible, arrests are not. Some specific state law provisions include the following:

California: Employers may not seek information on any applicant concerning arrests or detentions that did not result in convictions.

Colorado: Employers who require applicants to disclose information about sealed arrest records are guilty of a misdemeanor.

Hawaii: An employer may consider post-offer only those criminal convictions that bear a rational relationship to the position applied for. Employers may not examine conviction records older than 10 years.

Illinois: Employers may not inquire into or use the fact of an arrest or a conviction ordered expunged or sealed.

Maryland: An employer may not require an applicant to disclose information regarding expunged or pardoned criminal charges, or those that did not result in a conviction.

Massachusetts: Employers may not ask about an arrest, detention or disposition not resulting in a conviction or misdemeanor more than five years old.

New York: Employers may deny employment based on a prior conviction only where there is a direct relationship between the conviction and the employment sought, and employing the applicant poses an unreasonable risk to safety or property.

Wisconsin: No employer may refuse to hire an individual on the basis of an arrest or conviction record, unless the charge is substantially job-related.

Hiring Recommendations

Fortney offered the following advice to those involved in hiring decisions:

• Base adverse-employment decisions only on recent, job-related convictions.
• Conduct an individualized assessment of each candidate and his or her conviction records as to disqualification for employment. Policies without bright-line conviction rules are far less likely to result in disparate-impact challenges than policies with bright-line rules, but may still lead to disparate-treatment claims.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor.