Creating a defense against an EEOC claim from applicants with criminal records

by on May 21, 2009 · 0 Comment POSTED IN: HR Info Center

The possible disparate impact on minorities is the basis for the EEOC claim

Ever have an ex-convict apply for a job with your organization? If not, do you know what you’d do? With incarceration levels at a record level in the U.S., it’s more likely than ever you’ll turn up a criminal conviction in some candidate’s past.

To deal with the situation, you need to create a defense against an EEOC claim for discrimination. First thing to find out: If and when your state law allows you to deny someone a job because of a conviction. Among the factors you may have to weigh is whether the conviction relates to the person’s suitability for the job – say, an embezzler seeking an accounting position. And of course, a criminal conviction may rule out hiring people for sensitive jobs like the care of children or the vulnerable elderly. At the federal level, the EEOC is alert to the possibility of minorities being targeted by policies on hiring convicted criminals.

The EEOC wants you to look at such factors as:

  • type and gravity of the offense
  • time passed since the conviction, and
  • nature of the job applied for.

Also, see what your liability insurer says about hiring those with criminal histories.


The importance of this issue was underlined recently when a black job applicant filed an EEOC claim against Madison Square Garden for turning her away based on a five-year-old misdemeanor assault. Her EEOC claim said the Garden’s use of criminal histories in employment decisions had a disparate impact on black people – a claim that could have broad implications if she wins.

Cite: Clarke v. Madison Square Garden.

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