NTRCA Legal Minute with Karen Ensley of Cutler-Smith, PC - Criminal Histories and Employment Decisions

In 2012, the EEOC issued an opinion which states that taking arrest and conviction records into consideration when making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII. In keeping with this trend, the Texas house and senate passed HB1188 that grants added legal protection to employers who hire those with a criminal record. The rationale, generally, for these decisions is because minorities are more likely to have a criminal record. Therefore, basing employment decisions, even in part, on criminal histories, has a disproportionate effect on minorities.
So, what should you do? We recommend a two-pronged approach. First, when hiring, remove the "ever been convicted of a crime" question of the initial application - this should not be a factor in your hiring decision until the applicant has been preliminarily screened for suitability for the position. Second, whether hiring or promoting, limit your inquiries into the individual's criminal background, consistent with the job duties and responsibilities that apply to the position in question and with business necessity.
Next, develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct that:

  • Identifies essential job requirements and the actual circumstances under which the jobs are performed.
  • Determines the specific offenses that may demonstrate unfitness for performing such jobs. For example, you certainly would not want someone who had been convicted of crimes against children working on a school re-roof, although that same employee could appropriately be used on a commercial or industrial project. Nor would you necessarily want someone who went to jail on assault charges working as a crew foreman.
  • Identifies the duration of exclusions for criminal conduct and include an individualized assessment. Has it been six months or six years since the conviction?
  • Includes the justification for the policy and procedures, keeping notes on what research and consultation you conducted in crafting the policy and procedures.
  • Provides training for those responsible for hiring in these policies and procedures.

Finally, if you are uncertain whether your policy will pass EEOC muster, or simply are unsure about any particular hiring decision, consult an attorney.