Employers Beware: Asking a Job Applicant About His or Her Criminal History May Result in Civil Liability

It may seem run-of-the-mill to inquire about a job applicant’s criminal history during the hiring process, and there may be very legitimate, non-discriminatory reasons for doing so.  

For example, an employer may wish to prevent employee theft, avoid violence in the workplace, or limit employees’ arrest- and/or conviction-related absences.  However legitimate these concerns may be, employers should think twice about asking job applicants such questions without restriction.

To be sure, some states permit employers to ask limited questioning regarding an applicant’s criminal history.  For example, in Washington State, it is permissible to make pre-employment inquiries regarding arrests where charges are still pending, have been dismissed, or led to conviction of a crime that occurred within the last 10 years and involved behavior that would adversely affect job performance.  WAC 162-12-140(3)(b).  Likewise, in Washington State, an employer can inquire about an applicant’s prior convictions (or imprisonments) that occurred within the last 10 years and involved crimes that reasonably relate to the job duties.  WAC 162-12-140(3)(d).

However, state and local laws or regulations are preempted by Title VII of the Civil Rights Act of 1964 (“Title VII”) if they “purport[] to require or permit the doing of any act which would be an unlawful employment practice” under Title VII.  42 U.S.C. § 2000e-7.

Title VII prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin, and it applies to private employers and local government agencies with 15 or more employees who have worked for at least 20 calendar weeks (in this year or last).  It also applies to all federal agencies and certain employment agencies and labor organizations.  Title VII is enforced by the U.S. Equal Employment Opportunity Commission (“EEOC”), which issues nonbinding guidance to employers.

While having a criminal record is not listed as a protected basis in Title VII, an employment practice may nonetheless violate Title VII if it results in discrimination on the basis of race, color, religion, sex, or national origin as a result of “disparate treatment” or “disparate impact,” and the practice is not job related or consistent with business necessity.

EEOC guidance provides that disparate treatment may result when an employer learns that two employment candidates of different races or ethnicities both have a criminal record involving the same criminal conviction, but the employer treats them differently as a result of that employer’s stereotypes about race.  Evidence (such as biased statements, inconsistencies in the hiring process, employment testing, or statistical evidence) may establish that race, national origin, or other protected characteristics motivated an employer’s use of criminal records in a hiring decision.  Likewise, EEOC guidance warns that disparate impact may result when an employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate the policy or practice is reasonably related to the job position in question and consistent with business necessity. There may be Title VII disparate impact liability where a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer is unable to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.

As employment discrimination may be found on either basis (disparate treatment or disparate impact), the EEOC recommends as a “best practice” that employers not ask about arrests, which are not proof of criminal conduct, and not ask about convictions on the job application. If and when an employer inquires about an applicant’s convictions (such as during a second-round interview following an initial screen), the inquiry should be limited to only those convictions that are job related for the position in question and consistent with business necessity.  Finally, upon learning that an applicant has a criminal history, any assessment of the same should be individualized such that the employer considers whether the facts and the particular conviction are sufficiently related to the job at hand so as to exclude the applicant from consideration.

Sally F. White is an associate attorney with the Wenatchee law firm of Jeffers, Danielson, Sonn & Aylward, P.S.