Making a Case for Hiring Bars

Employers that have not already reviewed their screening and hiring policies on applicants with criminal records should do so now, according to Michael Abcarian, managing partner of the Dallas office of labor and employment law firm Fisher & Phillips. “If they don’t, they may be the next case that the courts look at in a class-action lawsuit,” he says.

Abcarian and other experts agree that the Equal Employment Opportunity Commission and the federal courts will soon require the evidence-based screening and hiring policies outlined in El v. SEPTA. The Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled in favor of the employer in that case, but stated in plain terms that hiring bars for people with criminal records must be grounded in substantive research on the actual risk of recidivism.

“Employers will have to show empirical evidence that an applicant with a criminal record is more likely to engage in criminal activity than someone randomly selected from the general population,” says Abcarian. “HR executives can’t just speculate about what people might do.”

Employers who use the now common five-year, seven-year, 10-year or lifetime employment bars for people with criminal records will need to produce empirical evidence to support those demarcations, Abcarian says. “HR executives cannot set arbitrary time frames for recidivism. You need real statistics on recidivism and a real reason to exclude applicants.”

The time frames promoted by screening vendors and adopted by employers are not supported by current research on recidivism. “Employers will have to explain the secret of a five-year or a seven-year bar,” says Adam Klein, partner at Outten & Golden in New York and chairman of the firm’s class-action practice group. The firm represents individuals and classes in employment law cases.

To produce the empirical evidence required, employers will need to draw from the work of social scientists such as Alfred Blumstein and Shawn Bushway, Klein says. “Social science research tells us that it is unlikely that a criminal conviction history is relevant to a job,” Klein notes. “The EEOC will ask for recidivism research focusing on the age at the time of the conviction and the nature of the crime.”

Blumstein published a major study in 2009 that actuarially identifies the point at which an individual with a criminal record is at no greater risk of committing a crime than other individuals of the same age. “The EEOC will look at the Blumstein study because it is directly on point with the issue,” says Reggie Belcher, shareholder at Turner Padget Graham & Laney in Columbia, South Carolina, which represents management in employment lawsuits. “Employers are going to have to come off their bright-line rules.”

Klein warns employers to pay particularly close attention to hiring bars that include convictions for drug offenses. “The war on drugs led to the substantial and disproportionate conviction of blacks and Hispanics,” he says. “The EEOC guidelines will address this because of the profound disparate impact. It may impose a higher requirement for these convictions with respect to the business-necessity defense.”

In addition to reviewing their screening and hiring policies for applicants with criminal records, employers should rethink their use of credit checks, Klein says. “Credit screening is a Title VII time bomb waiting to go off.”

Workforce Management, February 2010, p. 28 — Subscribe Now!