Can Criminal Background Justify Rejection? | DCR Workforce Blog

Can Criminal Background Justify Rejection?

The criminal activities of Frank William Abagnale, Jr. started at the age of 16 and continued unchecked til he was approximately 21 – when he was caught. He was a trickster, forger of checks (worth $4 million in the 1960s!), impostor and escape artist and was convicted in more countries than one! Then, he obtained the coveted role of security consultant to banks and even the FBI to make millions legitimately! Though his ingenious exploits inspired a Broadway musical and a Hollywood movie, Frank too was constrained to hide his criminal record and seek work as a cook and grocer before his skills were tapped for legitimate purposes – only to be fired the minute his record became known to his employers.

Felony is defined as an offense of graver character than a misdemeanor, which is punishable by imprisonment for more than one year in the United States. Ignoring all philosophic poseurs about a person paying a life-long price for one moment of madness – what can an employer do when faced with a job applicant whose felony conviction comes up in the background check and the position requires trust and dependability?

Business necessity… please prove it!

Excluding an applicant from employment due to criminal conviction records – is considered by the EEOC  unlawful under Title VII of the Civil Rights Act of ‘64. An exception is allowed when such exclusion can be justified as a business necessity.

To establish genuine business necessity, a company will need to take all of the following facts into consideration:

  • Nature and gravity of offense
  • Elapsed time since the conviction
  • Nature of job sought

If the role requires the applicant to manage cash or inventory – and the applicant was convicted for embezzlement and swindling – chances are that the employer would be justified in rejecting the applicant. The time elapsed since conviction would also matter in an assessment of the candidate. An employer would need to tread carefully to justify an outright rejection unless based on a genuine business-related concern.

Risk-prone zone

To avoid being the target of discrimination investigations, companies must train their employees on actions to avoid:

  • Basing employment decisions predominantly on arrest and conviction records.
  • Denying employment to persons with pending arrests, and no convictions.
  • Denying employment over minor convictions.
  • Ignoring limitations placed by state laws on seeking information on arrests that did not result in a conviction.
  • Ignoring the stipulations of the Fair Credit Reporting Act against misuse of criminal records.

Make sure that the supplier performs the required levels of background checks diligently, when hiring contingent workers.  When results indicate a criminal history, suppliers must provide the information needed to determine if the conviction was for a crime that would render the candidate inappropriate for the position.

It’s necessary to approach each application on a case-by-case basis to ensure that any rejection happens in a legally acceptable way. Should an applicant bring charges of discrimination, an employer must be in a position to substantiate that the rejection was justifiable given business requirements and priorities.

The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.