Background Checks

Whether or not a candidate for employment can be eliminated from further consideration solely on the basis of a conviction depends on the laws of the state in which the employer is located, as previously noted. So, caution must be used if that conviction is the primary basis for not hiring someone.  In many states, you can refuse to hire someone for that reason alone.  But care still needs to be exercised because, in every state, under federal law, you have to be sure that a policy to deny employment to anyone convicted of a crime does not have a “disparate impact” on a protected group, such as a racial minority.

Here is a definition of disparate impact:  “a theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class. A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.” (on-line legal dictionary)

The on-line legal dictionary quoted above, continues: “Under Title VII of the Civil Rights Act of 1964, plaintiffs may sue employers who discriminate on the basis of race, color, gender, religion, or national origin. Employers who intentionally discriminate are obvious candidates for a lawsuit, but the courts also allow plaintiffs to prove liability if the employer has treated classes of people differently using apparently neutral employment policies. The disparate impact theory of liability will succeed if the plaintiff can prove that these employment policies had the effect of excluding persons who are members of Title VII’s protected classes. Once disparate impact is established, the employer must justify the continued use of the procedure or procedures causing the adverse impact as a ‘business necessity.’”

The foregoing justifies adding a statement to any question about previous convictions on your job application like, “A conviction will not necessarily bar you from employment.  The type of conviction and when if occurred will also be considered.”  While there are pros and cons regarding the usefulness of court checks, it goes without saying that court checks should be done.