The United States Court
of Appeals for the Fifth Circuit has rejected an unsuccessful job applicant’s
claim that he was denied employment because of his criminal record. The Plaintiff in Noris Rogers v. Pearland School District unsuccessfully argued that
his history of felony convictions for drug offenses, including the sale of
heroin, amounted to race discrimination under a disparate impact theory of
liability.
In recent years, the
Equal Employment Opportunity Commission (“EEOC”) has filed a number of
high-profile lawsuits against companies, taking the position that
utilizing criminal background checks in making employment decisions may be a
violation of Title VII of the Civil Rights Act of 1964. The stated rationale for the EEOC’s stance is that employers’
reliance on criminal records as a factor in hiring decisions disproportionately
affects, or has a “disparate impact” on African-Americans and Hispanics, who
statistically have higher rates of arrest and criminal conviction.
In Rogers, the
African-American Plaintiff applied for a job as a master electrician for a
Texas school district. On the
application, Rogers responded “No” to all questions regarding criminal history,
including whether he had ever been convicted of or pled guilty to a criminal
offense, and gave his consent for a criminal background check. The background check revealed that Rogers had
multiple felony drug convictions. When asked
by the school district’s human resources director about the incorrect
information, Rogers became angry, raised his voice and had to be asked to
leave. The school district later hired
an African-American male for the position.
A few months later, the
successful applicant resigned and the position again became available. Rogers reapplied, this time disclosing his
criminal record on the application. The
school district did not hire Rogers because of his “lack of candor” in
disclosing his criminal record the first time.
In his lawsuit, Plaintiff claimed the real reason was race discrimination
based on his drug arrests, and not on the fact he lied on his job
application. The Texas trial court
granted the school district’s summary judgment motion, dismissing the case, and
Rogers appealed the ruling to the Fifth Circuit.
In holding that the trial
court was correct in dismissing the case, the Fifth Circuit rejected Rogers’
claim that
the School District maintains a policy of “excluding from consideration for
employment all persons who have been convicted of a felony.”While the Fifth
Circuit noted that under the school district’s actual policy, a felony
conviction would be an adverse factor in an application, it is “not an automatic bar to employment.” In
addition, the record shows that the School District follows procedures that
require the opportunity for an in-person meeting with any applicant to discuss
the applicant’s criminal history. The record also shows that the School
District recently hired several employees who had felony and misdemeanor
convictions. The Court discounted
Rogers’ comparator of a white school district employee who failed to disclose
on a job application a misdemeanor charge of marihuana possession thirty years
earlier.
While not discussed in detail
in the Fifth Circuit’s Opinion, it appears the school district’s policy was in
line with the recently updated EEOC guidelines, which put the burden on
employers to develop screening guidelines to individually assess each
applicant/employee to determine whether a criminal history may be used as a
factor in any employment decision. Under
the EEOC’s guidelines, for an employer to avoid Title VII disparate impact
liability for excluding an individual with a criminal record, the employers
must show that any reliance on a criminal history is job related and consistent
with business necessity. In doing so, an employer must show that it
considered three factors: (1) the nature and gravity of the offense, (2) the
amount of time since the conviction, and (3) the relevance of the offense to
the type of job being sought.
The case highlights the
need for employers to have such screening guidelines in place, proper
documentation to support any employment decision based on a criminal history,
and not to have any blanket-ban on employing individual with a criminal
history.
