Can an employer have a blanket policy against employing individuals with criminal convictions?

According to the Equal Employment Opportunity Commission, an employer cannot have a blanket policy against employing individuals with criminal records.  In 2012, the EEOC issued guidance stating that such policies have a disproportionately negative impact upon racial minorities.  Prior to that time, conventional wisdom held that employers could legitimately deny employment to individuals with convictions to protect themselves and their customers from the danger of employee misconduct and accompanying claims of negligent hiring.

Rejecting a per se bar against employing convicted criminals, the EEOC guidance states several specific criteria that employers should consider before disqualifying an applicant or employee with a criminal conviction.  These include the nature of the crime, the time since the criminal conviction occurred, and the nature of the employment position.  After such an analysis, the EEOC urges employers to perform an individual assessment of those disqualified by the employer to determine that they are not mistakenly screened out based on incorrect, incomplete, or irrelevant information, and to allow individuals to correct errors in their records.

Since 2012, the EEOC has sued multiple large companies, including PepsiCo, Dollar General, and BMW, claiming that their criminal conviction policies discriminate against African Americans and Hispanics, and sometimes deny employment to those convicted of non-violent and petty offenses.  Most such lawsuits remain in the early stages of litigation.

The EEOC’s efforts have caused a backlash by employer advocacy groups and several state attorney generals.  They argue that the guidance forces companies to make expensive case-by-case determinations concerning the criminal histories of convicted applicants and employees, who are ineligible for some positions by law.  Moreover, employers face legal liability if they employ convicted criminals in positions that interact with certain vulnerable groups, such as children, the disabled, and the elderly, and many positions require a high-level of character and trust (such as financial positions) which would render most convicted criminals unqualified.

On the other hand, some states (including Maryland) already require case-by-case determinations regarding the criminal histories of applicants by prohibiting public (and in some states private) employers from asking about convictions until after an employment interview.

Regardless of the outcome of efforts to challenge the EEOC’s guidance, employers confronted with the issue of whether to hire or continue to employ an individual with a criminal conviction should consider the broader context of the offense and the employment position to avoid claims that their policies discriminate against protected groups.