Should a 30-year-old conviction affect your prospects for employment? Should a single mistake outweigh three decades of responsibility? Can a seemingly innocent, apparently fair hiring policy be seen as racial discrimination?
These are questions brought up in a recent class action lawsuit brought against the Washington Metropolitan Area Transit Authority (WMATA). The implications of this suit are far-reaching, and their effects should influence how your business implements the information gained in criminal background screening.
Just the facts – What a DC lawsuit has to do with your business
Since 2011, the WMATA has implemented a broad policy that permanently bars applicants with certain criminal convictions in their past. Erick Little, the primary plaintiff in the current lawsuit, was denied employment at the WMATA in 2013 based on a single previous drug conviction. The year of the conviction? 1987. Of course, the policy was not made specifically for Mr. Little, nor was he the only one affected. One could even argue that such policies affect all applicants equally, in which case the situation would be simple.
But such things are rarely simple. Mr. Little is African-American, a minority which, in the United States, is at least six times more likely to be convicted of a crime, even when compared to Caucasians who are charged with the same crime. For drug offenses, some studies put the rate of conviction, including wrongful conviction, at 12 times higher than for white peers. Of course, the reasons behind this disparity are the subject of hot debate. But, for business owners, the reasons are unimportant when compared to the results. These statistics can (and have) been used successfully to sue businesses for discriminatory use of background checks. For example, a suit brought against Pepsi cost the soda giant over $3 million and a huge hit to their reputation.
Protecting your business and your employees
These facts do not undermine the role of background screening. In fact, they serve to emphasize the importance of background checks when evaluating candidates as a whole. Here’s how your business can protect itself while respecting employee rights.
1. Eliminate broad policies
Policies that bar all applicants with criminal histories will disproportionately affect minorities. Such policies should be reconsidered and adjusted before they cause further damage to your business and your employees.
2. Consider the needs of each job opening
A major factor considered when assessing a possible civil rights violation is the requirements of the job in question. If the criminal record has little to do with the potential workload, the chances of being charged with discrimination are much higher. On the other hand, if the alleged criminal activity directly impacts a candidate’s ability to perform their job, you may have good reason to deny employment without fear of being charged with a civil rights violation.
3. How much time has passed?
Even when the criminal charged is admitted to by the applicant, there may still be good reason to consider them for the job. In the case of Erick Little, his criminal charge as a teenager cost him a job when he was nearing 50. In his case, giving unreasonable weight to charges from many years ago was seen as racial discrimination. Businesses that wish to avoid discrimination should carefully consider how much time has passed since any charges or convictions were made.
Work with expert guidance
At Chane Solutions, we offer all our clients guidance at every step along the way. Since compliance is the best way to protect your company, our professionals can help you ensure complete compliance with all applicable laws. In addition, we promise you the most accurate, comprehensive background screening process possible so you can make an informed decision when hiring new employees. Contact us today to learn more about our services.