A prospective employer has the right to request and examine an applicant's arrest and conviction records. Because of this, many individuals with a criminal record—even with minor charges—are discouraged from applying for certain jobs. Employers have a right to protect their businesses from potential negligent hiring claims; however, an employer cannot use criminal records in a way that discriminates against the applicant. When can an employer refuse to hire someone solely because of their past criminal record?
The EEOC's Guidelines on Criminal Records in the Employment Context
The primary federal law providing protection against employment discrimination is Title VII of the 1964 Civil Rights Act. The Equal Employment Opportunity Commission (EEOC) is responsible for the administration of claims filed by employees, against employers, for alleged violations of Title VII. The EEOC also provides crucial guidance for employers and employees regarding discrimination in the workplace.
On the issue of an applicant's criminal history, the EEOC advises that employers consider certain factors before deciding whether to offer employment to an applicant. These factors include the seriousness of the criminal offense, how long ago the event occurred, and the type of job for which the applicant is applying. In other words, an employer should not summarily deny employment simply based on the existence of a criminal record.
Discrimination Based on Prior Convictions
Anti-discrimination laws are not all federally based. Many states have their own laws regarding discrimination in the employment context. With regard to prior criminal history, there are actually five states (Hawaii, Kansas, New York, Pennsylvania and Wisconsin) that have laws making discrimination on that basis illegal, under certain circumstances. In Hawaii, for instance, an employer is allowed to use a criminal conviction to deny employment, but only if the conviction in question "bears a rational relationship to the duties and responsibilities of the position."
Courts Will Determine Whether the Conviction Is Related to the Job
As an example, a court in Hawaii recently determined that the employer's denial of employment was not job-related. In Shimose v. Hawaii Health Systems Corporation, the court dealt with a radiology technician who had been denied a position at a hospital because he had a prior drug felony conviction. The hospital, as you could imagine, argued that working in a hospital would give the applicant access to medications, which could become a problem.
The court, however, determined that the hospital's reasoning was not sufficient to deny him employment. The employee was able to show the court that, in the position he was seeking, he would not be unattended while in patient rooms or when given access to areas where pharmaceuticals were stored. These arguments were enough to defeat summary judgment.
How Do I Fill out My Application If I Have a Prior Criminal Record?
The biggest mistake many applicants make is failing to answer the question about criminal history. Unfortunately, you cannot always avoid the issue, especially when employers almost routinely require background checks of all potential employees. The truth is, refusing to answer questions about your criminal record can cause a bigger problem than your actual record. An employer would likely be justified in not hiring you, or rescinding a job offer, because you lied "by omission." The best advice is to simply tell the truth. That way, you prove yourself trustworthy.
Do you have questions about your employment rights in Birmingham, Alabama? Call Michel Allen & Sinor to discuss your case with our lawyers in an initial case review!