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Convicted Felons—the 'New' Protected Classification?


Convicted Felons—the 'New' Protected Classification?

The Equal Employment Opportunity Commission’s (EEOC) revised Guidelines addressing employer use of arrest or conviction information when making employment decisions will have a significant impact on all employers. The standard practices of many employers will now put them at risk for a violation of Title VII, in that the EEOC now requires employers to consider, on a case by case basis, the arrest or conviction information when making an employment decision. While the issue of the consideration of arrests has been addressed for many years, the EEOC Guidelines with respect to felony convictions is a rather new issue for employers to face.

Under the revised Guidelines, employers can no longer have ‘blanket’ policies that eliminate the consideration of an applicant based on a felony conviction.  Instead, employers must now be able to show or prove through an individualized assessment that any specific exclusion from employment based on a criminal conviction and background is job related and consistent with business necessity.  Given the widespread use of background checks as well as the significant number of job applicants who have criminal records, the new guidelines directly address an issue that many employers deal with on a regular basis

The EEOC revised Guidelines are based upon the determination  that, while the use of  conviction records is not expressly prohibited by Title VII, the use of  criminal background information when making employment decisions disparately impacts a certain “classes” of people who are protected. Since a certain ‘protected class’ could be negatively impacted, the practice could violate the law.  Under the revised Guidelines should there be two similarly ‘qualified’ candidates, one of whom is a felon, the employer cannot merely choose not to hire the felon.

Employers can no longer eliminate certain applicants because they’ve been convicted of a felony without considering the applicant’s background and the specific job that is being filled. In fact, the Employer cannot immediately remove from consideration the individual who was convicted of a violent felony.  Instead, according to the EEOC, a series of individually considered factors should be reviewed and considered in making the employment decision. Among those factors are the facts and circumstances surrounding the criminal offense or conduct, the number of offenses for which the individual was convicted, age at the time of conviction or release from prison, the length and consistency of employment history before and after the offense or conduct, rehabilitation efforts, etc.

Consistent with the above, the EEOC is taking the position that the Employer can no longer have an employment application which merely asks the applicant whether or not he/she has been convicted of a felony. There now should be space on that application allowing the applicant to “explain” or provide information with respect to the felony conviction. 

Employers will now have to justify any exclusion from employment based on a criminal conviction background. The employer must be able to demonstrate that the exclusion from employment is relevant to the particular job being sought. 

Employers must review their current policies and procedures, including employment applications, to ensure that they do not run afoul of the revised Guidelines. 

 It would certainly seem that there is a new ‘protected classification.’