By: Tiffanie Benfer, Esq.
When may an employer lawfully use information about an employee’s criminal history? May an employer refuse to hire any employee with a conviction in his or her past? The EEOC conducted an open meeting last week to discuss these questions. It is likely that the EEOC will issue more comprehensive guidelines addressing these issues in the future.
Policies that prevent the hiring of employees with a history of a criminal conviction raise questions because those policies have a disparate impact on African American employees, who are statistically more likely to have a criminal record. Many employers would prefer not to hire any employees with a criminal history – in fact, a recent survey showed that more than 40 % of employees said that they would not ever hire someone with a criminal record. Fear of a suit based on negligent hiring makes it reasonable for employers to be concerned about employees with criminal records. Is that discriminatory? And, if it does have a disparate impact on persons of color, is it allowed anyway? There is no absolutely clear answer in the statutes or case law, but there are hints and guidance