Employers often seek to limit eligibility for employment to those who have no prior history with the criminal justice system, and there are statutes that expressly disqualify those with some types of criminal records from employment in certain jobs or occupations. There has also been an increasing trend of employers making use of more readily available evidence of criminal background information in connection with employment decisions, including the hiring and firing of employees. This trend may be a product of the proliferation of data and the increasing availability of methods to check on the criminal records history of people. Aside from any moral arguments concerning redemption and forgiveness, it is an empirical fact that the rate of criminal recidivism increases with unemployment. It follows then that when those with criminal histories are out of employment, crime increases. Although it might seem reasonable to broadly disqualify people with criminal records from employment, such a practice is not supported by reasonable policy and is fraught with legal peril for the employer.
Pennsylvania, along with many other states, has long had a statute that makes it unlawful to disqualify an employee for arrests or convictions if the offense involved was not reasonably related to job qualification. The Superior Court, based on the legislative history of that statute, has ruled that arrests not resulting in a conviction should simply not be considered as disqualifying a job applicant. In construing this statute, however, the courts have generally been sympathetic to employers??? arguments as to the kinds of criminal convictions that are deemed relevant to job qualifications, so that employers have been successful when there was some surface appeal to their arguments about connection.
But the statute expressly relating to criminal records is not the only one to be considered, and some of the legal principles protecting citizens are not so forgiving to employers. The Pennsylvania Supreme Court has held that a statute imposing a lifetime ban on employment as a home health care worker is a denial of the due process of law. Perhaps the most significant vulnerability for employers, however, is the disparate impact theory of employment discrimination, especially as it applies in the context of race or national origin. Under this theory, even though it may not be the employer???s specific intention to discriminate based on the race or national origin of a job applicant, a hiring policy that can be demonstrated to have a significantly harsher impact on minorities than on non-minorities, is unlawful unless it can be shown to be a ???business necessity.??? Policies that exclude applicants because of past criminal justice involvement have been thoroughly demonstrated to have such an impact. The business necessity defense places the burden of proof on the employer. It will be a rare employer that can carry this burden in support of an across-the-board exclusion for all criminal convictions.
In enforcing Title VII of the 1964 Civil Rights Act, the federal statute that outlaws racial discrimination for all employers with fifteen or more employees, the Equal Employment Opportunity Commission and the federal courts look to the nature and gravity of the offense or offenses, the time that has passed since the conviction or completion of sentence, and the nature of the job for which the applicant has applied. In short, a thirty-year-old conviction for assault will be hard to sell as relevant to a position as a bookkeeper, if the applicant has led a virtuous life since completing his or her sentence.
Even when a hiring policy is justified by business necessity, it may still be unlawful if it can be shown that there is an alternative, less discriminatory policy available that would satisfy the employer???s concerns. Pennsylvania also has a law that makes racial and national origin discrimination unlawful. It applies to employers with four or more employees in the Commonwealth, and also allows for disparate impact cases. The Pennsylvania Human Relations Commission may apply slightly different criteria, but the defense is not going to work unless there is some level of empirical proof that the conviction poses an unacceptable level of risk due to his prior history. If the employer???s decision is based on unsupported speculations or bias about certain kinds of offenses, or has not been carefully formulated in an effort to minimize its discriminatory effect, it may result in substantial liabilities.
The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.
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