Why no Texas employer should be asking about criminal history

legalnewsYour past should not dictate your future in America. Those who are able to work should be able to work and build their futures. Partially due to a failed war on drugs, which disproportionately affected African Americans and Latinos, one in four Americans who are of working age have a criminal record.

This is problematic because arrests and convictions can make it much harder to get a job. About 92% of employers conduct criminal background checks when they hire, and numerous people are disqualified from jobs based on this type of search, even though they’ve already been acquitted or served their time. There are some limited protections for those with criminal records, but they are insufficient. No employer should ask about criminal history.

The Equal Employment Opportunity Commission (EEOC) has determined that employers that take up a blanket policy of excluding all job applicants who have a criminal record may be using a practice that has a disparate impact on African Americans and Latinos. Title VII prohibits employers from treating people who have similar criminal records differently due to race, national origin, or another characteristic protected under Title VII.

Generally, employers can’t use practices that screen out individuals based on criminal history, if this practice significantly disadvantages a Title VII-protected individual and also doesn’t help an employer accurately determine whether the employee will be responsible or reliable. However, an employer may be able to establish that a criminal conduct exclusion policy is job-related and consistent with business necessity under Title VII.

Employers covered by Title VII can be held accountable if a plaintiff is able to show that he was treated differently in the workplace due to his race or ethnicity. When evidence shows that a seemingly neutral policy of conducting criminal background checks resulted in a disproportionate number of rejections of qualified African American or Latino people, it may be possible for a rejected African American or Latino employee to bring a disparate impact lawsuit.

Suppose, for example, X is white and Y is black, and both have graduated from Texas A&M and have similar education, skills, and job experience, but both pled guilty to marijuana possession charges as teenagers. Neither has had a criminal conviction since, but a background check is conducted. If X is given an interview, while Y is not, there may be a Title VII violation.

Evidence that could be used in a disparate impact case includes statistical evidence, biased remarks by the employer or a representative of the employer, inconsistencies during hiring that suggest an employer asked for criminal history information more often for individuals with certain types of names, and evidence that the charging party was treated differently from workers not in his or her protected group.

Although there is no statewide protection, Austin became the first city to approve a Ban the Box ordinance, following Travis County’s lead. Private companies hiring new employees need to delay inquiries about criminal convictions or background checks until after there is a provisional job offer.

This ordinance banning criminal background investigations applies only to Austin. These investigations are required only for positions involving financial responsibility or working with kids or disabled or elderly people. The Austin Police Department is still able to conduct an investigation of job applicants applying to law enforcement or public safety positions. Dallas County has also passed Ban the Box legislation to stop employers from asking about an applicant’s criminal background.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with a prospective employer regarding discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.

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