Can You Refuse To Hire A Felon?


Imagine you are a hotelier hiring for a sensitive position – perhaps a night auditor or purchasing clerk. Your practice is to conduct criminal-background checks on all applicants, since almost all of your employees will have some access to your guests and their property. During an initial phone interview the applicant reveals a significant criminal conviction. He tells you that he was recently convicted of a felony involving distribution of narcotics, served a short sentence and is currently on probation.

You decide to reject the applicant. You base your decision on two things – the recent timing of the conviction and the nature of the offense. A night auditor will have access to cash, guest credit card information and keys to guest rooms. A purchasing clerk will have ready access to hundreds, if not thousands, of dollars of merchandise and supplies. You reason that if the individual was willing to sell narcotics to make a buck, he is too high a risk to put in close proximity to your and your guests' money and possessions.

Not surprisingly, an acceptable criminal background is a qualification required by many hospitality employers. The risk of a lawsuit for negligence by a guest, visitor or co-worker if you hire an individual with a serious criminal record, who then does harm, is too high not to take reasonable preventive steps, such as a criminal-background check.

But in our hypothetical case, the applicant filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging race discrimination. The hotel's defense is obvious. First, since you conducted only a phone interview you did not know the applicant's race. Second, the decision not to hire the applicant was based on a legitimate business reason.

Unfortunately, the EEOC decided to expand the scope of its

inquiry and undertook an investigation aimed at the hotel's entire hiring practices including its use of criminal-background checks – what the EEOC refers to as a "systemic investigation."

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