Wanting to comply with the latest edict of the Equal Employment Opportunity Commission and give a recently released felon a break, Awft N. Cawssius ignored Pa Roll’s answer of “yes” to whether he had been convicted of a crime in the last five years and hired Pa to work as an armed security guard at Awft’s convenience store. When Pa Roll assaulted and shot a suspiciously acting John Q. Shopper, Shopper sued, alleging that Cawssius knew or in the exercise of reasonable care should have known that Pa Roll was unfit to be a security guard and created an unreasonable risk of danger to the other convenience store patrons. Is Cawssius liable to Shopper? Does the EEOC edict minimize his liability?
EEOC Guidance / Negligent Hiring
The EEOC’s updated Enforcement Guidance on the “Consideration of Arrest and Conviction Records in Employment DecisionsUnder Title VII of the Civil Rights Act of 1964” directs that an employer that uses criminal history to make employment decisions may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. The April 2012 Guidance summarizes the EEOC’s long-held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin and mandates significant changes in certain areas that are important to most employers. However, for employers, enforcement of the April 2012 Guidance may increase employer tort claim risk.
This month the State of Texas sued the EEOC in federal court in Lubbock seeking relief from the 2012 arrest and conviction guidance and complaining that the EEOC did not have the authority to implement hiring guidelines that prohibit Texas and its agencies from categorically excluding convicted felons for certain jobs. Texas state law allows for blanket, no-felons policies at certain state agencies, including the Department of Public Safety, the Department of Aging and Disability Services, the General Land Office, the Juvenile Justice Department, the Lottery Commission, the Parks and Wildlife Department and the public school system.
Yes, Awft N. Cawssius is probably liable either way – for negligent hiring of Pa Roll, or for violating the EEOC had he not hired Pa Roll. No, for those employers in Texas and most states who hire a convicted felon, the EEOC edict does not reduce liability. Three states (Colorado, Massachusetts, and North Carolina) adopted laws, in conjunction with other reforms, to limit the liability of employers who hire people with criminal records.
Tilting the Scales in Your Favor
How Can Employers Legally Conduct Criminal-Background Checks? Several tips to assist employers from the Texas Workforce Commission:
Audit. Routinely audit applicant/hire files to determine whether your criminal-background-check policy disparately impacts any group.
Criminal Background / Credit. Review current criminal-background-check policies for consistency with the “business necessity” requirement and the EEOC position. Employers may perform criminal background checks themselves, but must give written notice that a credit or background check will be done and get written authorization for the check per the Fair Credit Reporting Act. If turned down, the employer must tell the applicant why, give the applicant a copy of the report, and let them know the name and address of the service that furnished the information.
Customer’s Homes. Texas requires in-home service and residential delivery companies to perform a complete criminal history background check on employees sent into customers’ homes (including attached garages or construction areas next to homes). Doing so gives Awft N. Cawssius the upper hand to argue that he did not act negligently in hiring. See the Texas Civil Practice and Remedies Code, Sections 145.002-145.004.
Convictions, Not Arrests. Unless required by law, Awft should ask only about convictions and pleas of guilty or no contest, not arrests, and be prepared to show how the criminal record was relevant to the job in question, i.e., the security guard will be carrying a gun, or otherwise created an unreasonable risk of possible harm to people or property. More EEOC information HERE.
Polygraph. Never ask an applicant to take a polygraph exam, unless your organization is statutorily required to do so – that would be a violation of the Employee Polygraph Protection Act of 1988, a federal law.