An attorney with the Equal Employment Opportunity Commission in Newark, New Jersey, said employers may want to reconsider hiring policies that bar anyone with a criminal record from being hired. Another employment law attorney said that employers may want to rethink the use of credit reports when screening potential job applicants as well. The comments came about during a roundtable discussion in Hasbrouck Heights regarding employment law and compliance with Title VII legislation which bans workplace discrimination.
As many employers know, Title VII bans discrimination in the workplace based on race, color, sex, religion and national origin. Title VII does not address the use of criminal records in hiring decisions specifically but the law does ban "disparate treatment" of certain classes of people. National data shows that excluding candidates with a criminal record does have a disproportionate affect on some minorities. Someone with an arrest record is not proof that he or she actually committed a crime and thus should not be used in consideration of employment.
Employers would be better served by not inquiring about a candidate's criminal record until a job offer has been extended. A candidate's criminal record should only impact hiring if an employer can validate how that record impacts the candidate's ability to do the job. If a company has a broad-based policy of not hiring anyone with a criminal record they may be in violation of Title VII and therefore at risk for liability in any potential employment discrimination claims.
Case in point: Pepsi Beverages recently agreed to pay more than $3 million in a settlement over charges that it discriminated against African American job applicants because it used arrest records during its hiring process. There are exclusions that apply to Title VII which allow for lawful reasons in which to use criminal records in hiring decisions, such as the hiring of child care workers, security personnel and law enforcement so it is important to understand the requirements of the law.
The same general rules apply when using a candidate's credit ratings in hiring decisions. Credit ratings tend to more adversely affect women and minorities and are often inaccurate. There are a number of reasons for a negative credit rating, including identity theft, divorce or the death of a spouse that are unrelated to a person's ability to perform a certain job. Employees and potential employees who feel they have been discriminated against may have a valid claim if a company's policies do not comply with federal and state employment laws.
Source: NorthJersey.com, "Using criminal records, credit ratings is risky business in hiring," Linda Moss, Jan. 22, 2013