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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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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