Tuesday, April 13, 2010

Do you know? Using criminal histories and conviction records in hiring

A rejected applicant has filed a class action lawsuit against management consulting firm Accenture, claiming that it discriminates against minorities through a policy of rejecting qualified individuals with criminal histories. Judy Greenwald at Business Insurance provides the details:

According to Roberto J. Arroyo vs. Accenture L.L.P., filed … in federal district court in New York, Mr. Arroyo spent two and one-half years in prison in a 10-year-old conviction for vehicular homicide in a car accident in which he had been driving while intoxicated.

Mr. Arroyo worked for Chicago-based Accenture as a contract employee in its Murray Hill, N.J., office from November 2005 to April 2007. In April 2007, the firm offered Mr. Arroyo permanent employment subject only to the results of a background check, but withdrew the job offer and terminated his employment as a contract worker based on his conviction, according to the lawsuit.

This lawsuit illustrates an important issue—that the EEOC targets blanket policies that bar the employment of any applicant because of an arrest or conviction. According to a December 14, 2004, informal EEOC opinion letter:

Although Title VII does not, on its face, prohibit discrimination on the basis of conviction records, the EEOC and courts have concluded that a policy or practice of excluding individuals from employment on the basis of their conviction records may have an adverse impact on certain minority groups in light of statistics showing that they are convicted at a rate disproportionate to their representation in the population.

Just because a company cannot per se disqualify individuals because of criminal histories does not mean that they can never be used a factor. What are the rules for the proper use of arrest and conviction records as employment criteria?

1. If an employer collects arrest or conviction information, it must do so consistently. It is unlawful under Title VII to obtain criminal records in an inconsistent manner—based on the race, color, religion, national origin, or sex of the applicant. For example, it would be facially unlawful for an employer only to require background investigations of applicants who were born in the Middle East or are Muslims.

2. An Employers should assure applicants and employees that honestly providing criminal histories will not result in an automatic disqualification from consideration.

3. If a policy concerning arrest or conviction records disproportionately affects minorities, an employer may nevertheless maintain the policy if it can prove a business need. According to the EEOC, an employer must consider whether a particular applicant should be excluded from a particular job based on:

  • The nature and gravity of the offense;
  • The time since the conviction and/or completion of the sentence; and
  • The nature of the job held or sought.

In other words, employers must undertake a job-by-job, employee-by-employee, check-by-check analysis of the relationship between the conviction and the ability to perform the job.

If you have a question about the use of criminal backgrounds in hiring and other employment decisions, you should contact employment counsel to guide you through this thorny issue.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.