Can an Employer Refuse to Hire Me for Having a Felony?

Having completed their sentence, convicted felons often experience difficulty in securing employment because many employers choose not to hire them. Just as employers may have policies in place that may result in termination upon the conviction of a felony, they may also have policies that weigh against hiring convicted felons. However, a series of laws may prevent an employer from having a blanket policy against discriminating against employees who have been convicted of a felony.

Federal Laws

The most important federal law regarding this subject is Title VII of the Civil Rights Act of 1964. This law prohibits covered employers from discriminating against individuals due to race, religion, color, nationality or another protected basis. The Equal Employment Opportunity Commission is the federal entity that enforces violations of this Act. There are two general ways in which a Title VII violation may arise when refusing to hire individuals with a felony: disparate treatment or disparate impact.

Disparate Treatment

Disparate treatment occurs when an employer treats two similarly-situated individuals in a different manner with the intent to discriminate on one of the bases noted above. For example, an employer may choose to hire Caucasian individuals who have a felony conviction and not hire African-Americans with a similar felony conviction.

Proving Disparate Treatment

There are several ways in which you can substantiate that an employer is disparately treating two individuals on the basis of a protected characteristic. For example, the employer may make negative statements regarding the protected status of a particular group or that reinforce stereotypes against that group. Another way to prove disparate treatment is to show that there are inconsistencies in the hiring process, such as asking individuals of a certain nationality or race to submit to a criminal background search but not making the same request of individuals from a different nationality or race. Another valuable piece of information is whether the employer has hired an employee from one particular ethnic background who has a similar criminal history but not a person of a different ethnic background with the same type of criminal history.

Disparate Impact

Discrimination due to felony convictions is more likely to be an issue of disparate impact than disparate treatment. Disparate impact does not require the employer to have a discriminatory intent. Instead, it focuses on whether an otherwise neutral employment policy has the ultimate effect of disproportionately affecting one group over other groups. This practice is only illegal if the employment practice that results in this effect is not related to the position and is not consistent with business necessity. For example, an employer may have a blanket policy in place in which it refuses to hire any applicants who have any type of felony conviction. Because the conviction rates for certain ethnic groups are higher than for other groups, having such a policy in place may very likely wind up excluding more individuals in the ethnic groups that have higher conviction rates than in other groups.

Job Related and Consistent with Business Necessity

Once an applicant can show disparate impact, the employer has the burden to show that the employment practice that led to the disparate impact is related to the job and consistent with business necessity. This means that the employer must show a relationship between the employment practice and how a person would successfully perform aspects of the job. Courts may look to the following factors to determine whether a policy is job related and consistent with business necessity: the nature and gravity of the charge that led to conviction, the amount of time that has passed since the offense occurred or the sentence was completed and the nature of the job that is being pursued. One circuit has framed the question as whether the employer’s practice can demonstrate that the applicant poses an unacceptable level of risk when compared to other applicants. In order to avoid liability under Title VII for disparate impact, the Equal Employment Opportunity Commission says that there are two ways in which employers can meet the job related and consistent with business necessity test. The first is by using the Uniform Guidelines standards to validate the criminal conduct screen based on the specific position to which the individual is applying. The second is if the employer established a screening process that allows the employer to evaluate the nature of the crime, the amount of time that has elapsed since conviction or release and the nature of the job. Additionally, the employer in the second scenario must give the individual applicant an individualized assessment to determine whether the employment practice applied to the individual is job related and consistent with business necessity.

State Laws

Some states have passed laws that are stricter than the federal guidelines. These states may prohibit public, private or both types of employers to use criminal histories against the applicants.

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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws they may affect a case.

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