This week’s question: CRIME AND PUNISHMENT
QUESTION: I have been looking for work for months now and can’t find a job. Seven years ago, when I was a college sophomore, I was convicted of disorderly conduct. I honestly answer questions about my past on job applications, but I’m not getting any job offers. Is my past preventing me from getting hired? Can an employer refuse to hire me because of my criminal conviction?
ANSWER: An employer’s use of an individual’s criminal history in making employment decisions may be discriminatory. Criminal record exclusions have been found unlawful if the exclusions have a disparate racial impact. Enforcement of certain policies can have a disparate impact on racial minorities because disproportionate members of minority races have been wrongfully caught up in the criminal justice system. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.
Where there is disproportionate racial impact, an employer must show that refusing to hire an applicant with a criminal background is consistent with the job duties of the position and business necessity. The employer may also develop a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job.
For example, a criminal conviction for embezzlement may bar you from working in a bank. A bank may lawfully deny employment to applicants who were convicted of stealing. In your case, whether a prospective employer may bar you from employment depends upon whether the decision not to hire you disproportionately affects members of your race and whether a disorderly conduct conviction from seven years ago are related to the job you applied for.
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By: Daniel A. Gwinn, Esq. Attorney and Counselor at Law GWINN TAURIAINEN PLLC 901 Wilshire Drive, Suite 550 Troy, MI 48084 (248) 247-3300 (248) 247-3310 facsimile firstname.lastname@example.org www.gwinntauriainenlaw.com