Failure To Hire Was Not Racially Discriminatory Where Employer Had Established Policy Against Applicants With Theft Convictions
Recently, the EEOC lost a lawsuit against an employer, Con-Way Freight, under allegations that the company did not hire an applicant because of her race. In support of these allegations, the EEOC offered evidence that one manager, upon learning of the applicant’s race, made a statement that hiring the woman would “open a can of worms” and the other manager told the applicant that his manager did not want him to hire her because if he did he was just “begging for the NAACP.”
Were these statements inflammatory? Absolutely. Was it stupid for these managers to make these statements? Definitely. Does it make the employer liable for discrimination? Not so much.
See, Con-Way freight had an unwritten, but well established policy of not hiring any person with theft-related criminal convictions. The complaining applicant in this case had two. So, regardless of the moronic statements made by these two managers, she would not have been hired by the employer, anyways. While not discussed in this case, Con-Way’s policy would appear to be reasonable as well. As a company devoted to shipping and carrying products across the country for its clients, theft is probably a top priority.
In addition, neither of these managers actually played a role in deciding not to hire the complaining applicant. Con-Way had a central human resources department. Applicants had to be put forward by a manager to the HR department which would run a background check and then notify the manager whether the applicant was approved. Since Con-Way fired the hiring manager before he put any name forward to the HR department, the complaining applicant never had the opportunity to be approved or disapproved by the company, let alone by any manager with a discriminatory intent.
The EEOC jumped too quickly on this one simply because a couple managers made some incendiary statements. But what the EEOC was missing was a nexus. There was a lack of evidence linking the statements to any decision not to hire the applicant. In addition, the EEOC missed the fact that this applicant would have never been hired, anyways, because of her criminal record. As an agency with a noble cause on a taxpayer-budget, the EEOC would do well to better pick the cases it takes to litigation.
Comments (7)
Read through and enter the discussion by using the form at the endNona Young - January 20, 2011 5:32 PM
How do we use background checks when an applicant has a history of some criminal act that occurred over 10 or so years ago and doesn't appear to have a nexus to the job. Must we still consider the age of the person at the time the crime occurred, the years since the crime occurred, and the job the applicant is applying for? Is that still part of our hiring responsibility? Also, are we required to notify the applicant of our decision if our decision is unfavorable to the applicant? In this case, there seems to have been a nexus to the job in that a record of theft and this particular work would be an issue.
Frances Rogers - January 24, 2011 9:28 AM
As to your question, "must we still consider the age of the person at the time the crime occurred, the years since the crime occurred, and the job the applicant is applying for?" the answer is "yes" because we must consider how each of those factors have an effect on the job applied for and employer. A good case to read is El v. Southeastern Transportation Authority (3rd Cir. 2007) 479 F.3d 232 which is discussed in LCW's Workbook, Personnel Issues: Hiring, Reference Checks - http://www.lcwlegal.com/78245. There, the EEOC alleged an overly-broad criminal conviction policy had a disparate impact on racial minorities. The Court of Appeals found the employer established the defense of business necessity by showing how its conviction policy had a nexus to the job performed and the customers served. The EEOC Compliance Manual on Title VII of the Civil Rights Act further states that the employer must justify that the conviction information is job related and consistent with business necessity. In some instances, statutes require that employers not hire persons for particular types of jobs who have certain types of convictions (e.g. persons who work with children, community college and school district employees, peace officer, etc.). Keep in mind that most California employers are also prohibited on making employment decisions based on convictions for certain types of crimes, such as lesser marijuana-related convictions.
Rebecca Moxley - February 22, 2011 2:52 PM
Discrimination comes in many forms. More and more of our clients, come to us with a complaint of "Unemployed need not apply". Last week, The Seattle Times reported a story on that very same subject. http://seattletimes.nwsource.com/html/nationworld/2014248693_jobless17.html
People turn to us desperate for help, we do what we can from a practical standpoint; but we'd like to know if they (Generally) have a legal leg to stand on?
Frances Rogers - March 1, 2011 9:01 AM
Rebecca, your question poses the following question: Is it unlawful to discriminate against a job applicant based on the fact that the applicant is currently unemployed? Being unemployed is not a protected category that we are aware of under state or federal law. In other words, we are unaware of any statute which expressly forbids an employer from discriminating against an applicant due to their status as being currently unemployed. There may be valid reasons, as well, for an employer to be concerned about the length of time an applicant has been unemployed including loss of fluency in job-related skills, becoming "stale" on certain job proficiencies and job-related knowledge, lapse of job-related licenses or certifications, and not being current on laws or regulations concerning the occupation. Nonetheless, employers should be careful about discriminating based upon an applicant's status as being unemployed. The EEOC is currently looking at this issue as having a possible "disparate impact" on a protected class. For example, it is possible that categorical exclusion of the unemployed may have a disparate impact on women who are more likely than men to be away from the workforce to raise small children. Employers should be wary that a wholesale exclusion of unemployed applicants may expose the employer to a claim of disparate impact in violation of the Fair Employment and Housing Act or Title VII of the Civil Rights Act.
Jodi - October 30, 2011 5:15 AM
I am currently researching adjudication guidelines for background investigations.
I am trying to learn from a legal perspective what an employer's liability would be if an employee were hired, stole from customers, and the employer was aware that the employee had been convicted of petty theft prior to hiring?
Can you help?
Jodi - October 30, 2011 5:17 AM
I am currently researching adjudication guidelines for background investigations.
I am trying to learn from a legal perspective what an employer's liability would be if an employee were hired, stole from customers, and the employer was aware that the employee had been convicted of petty theft prior to hiring?
Can you help?
Jodi - October 30, 2011 5:18 AM
I am currently researching adjudication guidelines for background investigations.
I am trying to learn from a legal perspective what an employer's liability would be if an employee were hired, stole from customers, and the employer was aware that the employee had been convicted of petty theft prior to hiring?
Can you help?