 |
Home | Search | Browse | About IPO | Staff | Links |
|
Home | Search | Browse | About IPO | Staff | Links |
|
Employee background checks —
The employer's dilemma: negligent hiring versus Editor's Note: This is the second of a two-part series about negligent hiring. It discusses those questions an employer can ask job applicants without violating civil rights laws or the Illinois Human Rights Act.
By Janet E. Goldberg The Illinois Human Rights Act (Illinois Revised Statutes, Ch. 68, §2-103) flatly prohibits employers from inquiring on a written application whether a job applicant has ever been arrested. Moreover, courts in Illinois and elsewhere have found such inquiries to violate the civil rights laws because they operate to discriminate against racial and ethnic minorities. Not surprisingly, since Section 2-103 of the Illinois Human Rights Act was adopted, there have not been any reported Illinois cases which have found a cause of action for negligent hiring to exist on the basis of the employer's failure to inquire about a job applicant's arrest record. Thus, employers should not ask prospective employees, either during a job interview or on a written application, whether they have ever been arrested. Criminal conviction records Section 2-103 of the Illinois Human Rights Act expressly provides the prohibition against inquiring into arrest records. It does not, however, preclude a local governmental unit or a school district from using criminal conviction records obtained from the Illinois Department of Law Enforcement in evaluating the qualifications and character of prospective employees.
However, the Equal Employment Opportunity Commission (EEOC) has held that a flat rule disqualifying those with criminal convictions may result in illegal race discrimination under the civil rights laws. Thus, an employer should not automatically bar an applicant from consideration for employment because the applicant has been convicted of a crime. The EEOC has held that employers may ask whether prospective employees have ever been convicted of a crime. However, the EEOC warns that to avoid violating the civil rights laws, employers should make sure that criminal conviction inquiries are necessary to safe job performance and are related to bona fide occupational qualifications. Further, criminal convictions should only bar employment if they have a direct relationship to the requirements of the particular job. For example, an employer might legally deny a convicted child molester a position involving direct supervision of children, such as director of a youth recreational program, but he would probably violate the civil rights laws by denying the same applicant a job as a bank teller. EEOC rulings The EEOC has found the relationship between a criminal conviction and the prospective position too remote to justify Illinois Parks and Recreation 11 May/June 1988
rejection of the applicant where an employer refused to hire a black mechanic because of a prior gambling conviction, and where an employer failed to hire a black crane operator because of a conviction for armed robbery. In another case, however, where an employer refused to hire a black applicant for a custodial job because of a felony robbery conviction, the EEOC found no violation of the civil rights laws. The distinguishing factors in that case were that a custodian would have access to the master keys, and that the crime involved (i.e., robbery) directly related to the duties of the job.
Ameliorating factors Even where a direct relationship between a conviction and the job is found, employers must still evaluate other factors to determine whether the applicant could perform acceptably in spite of the conviction. Evidence of efforts at rehabilitation, a good work record, and the remoteness in time of the conviction have been found by the EEOC and the courts to outweigh considerations of job-relatedness. For example, in a recent case, the Illinois Appellate Court found that an employer had violated the civil rights laws when he refused to hire a black applicant for the position of "police officer learner" because of the record of his arrest and conviction for unlawful possession of a weapon. The Court reasoned that it was unlikely that the applicant would engage in this or any other type of wrongdoing in the future (1) since the applicant had only been convicted of a single misdemeanor charge, (2) the conviction had occurred five years before he applied for this job, and (3) the applicant had established a history of responsible police work involving the use of a gun during the five years following his conviction. To best protect themselves from legal action, employers should take such ameliorating factors into consideration when making a hiring decision; however, the evidence of ameliorating factors must be very strong to overcome the existence of a job-related conviction, particularly where the job involves a high degree of risk to the public.
Finally, the EEOC does not consider it a violation of the civil rights laws to base an employment decision on the falsification of an answer to a conviction inquiry, as long as the employer applies a neutral rule in a non-discriminatory manner. Thus, an employer may disqualify a minority applicant for falsely responding to the employer's conviction record inquiries, if the employer disqualifies every applicant who has falsified such responses. Conclusion Recently, several courts around the country have found that employers may have a duty to conduct background investigations on prospective employees where the employer might reasonably anticipate that members of the public would be placed in a position of injury due to the nature of the available position. However, inquiries into an applicant's criminal history, and subsequent denials of employment by the employer on the basis of the applicant's criminal record, are loaded with problems for employers. Accordingly, employers must proceed with caution.
Illinois Parks and Recreation 12 May/June 1988 |
|
|