A judge last year dismissed an EEOC suit accusing a Dallas events-marketing firm, Freeman Co., of a pattern of discrimination based partly on its use of criminal-background information. Judge Roger W. Titus, in dismissing the suit in federal court in Greenbelt, Md., said the agency was asking companies to ignore “criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC.”
At the same time, laws that require employers to fire qualified workers seem ripe for challenge:
Ohio in 2007 passed a law barring people convicted of certain crimes from working in public schools. The Cincinnati system discharged 10 employees, nine of them black. Two of the nine filed a suit in Cincinnati federal court, which is still pending, alleging racial discrimination.
One plaintiff, Eartha Britton, 60 years old, was an instructional assistant and 18-year veteran. Her crime: a 1983 conviction for being a go-between in the sale of $5 worth of marijuana, a conviction that was later expunged, the suit said. Through her attorney, she declined to be interviewed.
In situations where the law does not require rejection, employers must do their best to reconcile the “varying impulses—to give job seekers a fair shot, to keep workplaces safe and to keep companies out of legal jeopardy.” Some states have developed standards to assist employers in charting this course, and others invite reliance on restoration mechanisms such as pardon or expungement (to be discussed in the next WSJ article). It seems that employers who are trying to do the right thing would welcome some more coordinated national effort to address the issues raised by mass conviction.