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Criminal Records and Zero-Tolerance Policies

Criminal Records and Zero-Tolerance Policies
The State of the Law

The use of corporate zero-tolerance policies that automatically bar applicants and employees with criminal records are illegal under Federal law and the laws of many states.

State Law

Corporate policies that bar all former offenders from employment are illegal in many states.  New York law (N.Y. Executive Laws §296), for example, requires that there be a nexus between the nature of the offense and the job requirements of the position in question before the employer can lawfully refuse to consider an application.

In Soto-Lopez v New York City Civil Service Com[1], the Federal District Court for the Southern District of New York held that it was a violation of New York law to reject an applicant for a caretaker position based solely on a prior conviction, even though the conviction was for manslaughter.  The court stated that there was insufficient nexus between the nature of the crime and the requirements of the job.

Other states also have statutes outlawing outright bans on hiring people with criminal records, including Pennsylvania, California, Minnesota, and Massachusetts.[2]

One significant case brought under Pennsylvania law was Nixon v. Commonwealth of Pennsylvania.[3] In Nixon, the plaintiff was terminated from his job managing a health care facility because of his conviction for possession of marijuana. The court held that the connection between this offense and the nature of his job was too tenuous to support discharge.  Another plaintiff in the case was terminated as a driver for mental health clients because of a conviction of theft (involving $30). This plaintiff was also successful.  These rulings are particularly striking because both jobs involved caring for the elderly.

Federal Law

There is also potential liability under federal law.  It is well established that denying employment to those with criminal records has a disparate impact upon Blacks and Hispanics and therefore creates potential liability under Title VII.  An employer who denies employment based upon criminal convictions must therefore demonstrate that doing so is a business necessity.  The EEOC takes the position that a blanket policy excluding all applicants with criminal convictions does not meet this standard.[4] An employer must make such decisions on an individual basis, considering

  1. The nature and gravity of the offense
  2. The time that has passed since the conviction and/or completion of the sentence
  3. The nature of the job held or sought.

This position was upheld by the 8th Circuit in Green v. Missouri Pacific Railroad Company.[5] and has been consistently upheld by every circuit that has ruled on this issue including the 2nd, 3rd, 4th, 7th, 9th, 11th and the D.C. Circuit.[6]

For example, in Marshall v. Klassen,[7] the Seventh Circuit in failing to grant summary judgment found that allegations of a uniform policy for discharge based on felony convictions was actionable and endorsed what it called the “Missouri Pacific Theory.”

The Ninth Circuit in Gregory v. Litton,[8] found that an employer’s policy of automatic disqualification for employees who had multiple arrests for things other than minor traffic incidents did not meet the business necessity test.  Indeed, even the Eleventh Circuit which has been hostile to disparate impact claims involving criminal records found that a policy of rejecting all applicants with significant arrest records is “illegal…according to well settled case law.”[9]

Most of these laws allow affected employees to file private actions with the potential for full compensatory and punitive damages.  Blanket policies refusing to hire anyone with a criminal record are a potentially expensive mistake for employers.

[1] 713 F Supp 677 (SD NY, 1989)

[2] 18 Pa. Consol. Stat. §9125, Minn. Sat. Ann. §364.04, Mass. Gen. Laws Ann. ch. 151B §4, Cal Lab Code § 432.7, Cal Gov Code §12940

[3] 789 A.2d 376 (Commonwealth Court of PA 2001)

[4] EEOC Notice N-915 (February 4, 1987)

[5] 523 F.2d 1290 (8th Cir. 1977)

[6] Hill V. U.S. Postal Service, 522 F. Supp. 1283; King v. Girard Bank, 1978 U.S. Dist Lexis 19092; Chappelle v. El Dupont, 497 F. Supp. 1197; Marshall v. Klassen, 1977 US Dist Lexis 17375, Gregory v. Litton, 316 F. Sup. 401; Smith v. American Service Co. of Atlanta, 611 F. Supp. 321; Reynolds v. Sheet Metal Workers Local, 498 F. Supp. 952.

[7] Id.

[8] Id.

[9] Id.