Convicted Felon Sues Leading Retail Store for Refusing to Hire

Source: HR.blr.com

A federal court in Pennsylvania recently held a hearing to consider whether federal anti-bias laws protect employees or applicants, who are convicted of a felony, from discrimination.

In 2004 a man pled guilty to one count of Attempted Dissemination of Indecent Material to a Minor in the First Degree, which is a felony. In July of 2007 he applied for a job at a leading retail store. Pending the outcome of a background check and drug test, the company offered him a job as a cashier. Before the check began, it was revealed the applicant was a convicted felon, and the company informed him he would most likely not pass the background.

The applicant then decided to revoke his permission for the background. He sued the company under federal antidiscrimination law, Title VII of the Civil Rights Act of 1964, which bars bias based on race, color, religion, sex, or national origin. Even though the conviction of a felony is not part of the protected categories in the law, the applicant decided to pursue his claim. He felt the company’s policy of refusing to hire felony sex offenders has a disparate impact against racial minorities because they are more likely to have been convicted of a felony. The retail company asked for the case to be dismissed.

U.S. Supreme Court decisions hold that employment practices which may be neutral on their faces may operate to perpetuate prior discrimination. In response to those decisions, Title VII itself was amended to state that an unlawful employment practice based on disparate impact is established [if] a complaining party demonstrates that a company uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin, and the company can't show that the practice is job related and consistent with business necessity.

In this case, the court found that the applicant failed to state a claim on which relief could be granted because he was not a racial minority. The court dismissed the complaint for failure to state a claim upon which relief may be granted.

According toHR.blr.com, an important point to remember is, “Employment policies that exclude individuals based on their criminal history may violate Title VII because such policies disproportionately impact minorities, as they are arrested and convicted at a rate disproportionate to their representation in the population.”

For more information on how to attract and retain the employees you need, please contact Berkshire Associates Inc. at 800.882.8904 or email bai@berkshireassociates.com.