Best Ohio Discrimination Attorney Answer: Can I refuse to tell an employer I have a criminal record? Is it discrimination to refuse to hire convicted felons? Is it wrongful termination to fire me after years of good reviews, just because my boss found out I lied about past criminal convictions on my application?
In a recent survey, 92 percent of responding employers reported subjecting all or some of their job candidates to criminal background checks. Employers previously reported that they use applicants’ criminal histories to avoid theft and fraud, workplace violence, and liability for negligent hiring claims.
To that end, there’s a box in almost every employment application that asks the following question: Have you ever been convicted of a criminal offense? Many of us easily check “no” and move on to the next question in the application. However, there are some applicants, who due to youthful indiscretions, or just a troubled past, cannot pass the box by without trepidation. Many qualified job applicants are passed over because of their previous criminal history. All of the rejection letters, the unreturned phone calls, and even flat out refusals to consider a troubled applicant cannot help but bring the question of whether or not they are experiencing some form of discrimination.
Is an employer’s refusal to hire applicants with criminal backgrounds unlawful discrimination? The answer to this question is no, at least on its face. Under Ohio law, employment is automatically “at-will.” At-will employment means an employer can hire or fire an employee at any time for something as simple as failing to tie their shoes or for a legitimate reason such as failing to show up to work on a daily basis. Failure to tell the truth on your employment application about your previous criminal history is a lawful grounds for termination. The law only intervenes on the employee’s behalf if they are a member of a protected class such as age, race, religion, gender, national origin, military status or disability, and/or engaged in a protected activity such as a whistleblower or filing for Worker’s Compensation. Therefore, typically, unless the employee can show that the criminal conviction was only the employer’s Trojan Horse for the real reason (membership in a protected class) that he or she was not hired or fired, the law will usually allow employers to discriminate based on an employee’s criminal background.
But, your friendly neighborhood employment discrimination lawyers do not stop our analysis here. Criminal history inquiries can be used as a basis of disparate treatment discrimination claims. For example, an employer will liable for violating Title VII of the Civil Rights Act of 1964 and Ohio R.C. § 4112.99 where the employer hired a White application over an African American applicant although both had comparable criminal records.
According to the Equal Employment Opportunity Commission (“EEOC”), the use of criminal records could also create a disparate impact claim. A disparate impact claim occurs when: (1) an employer’s facially neutral policy or practice has the effect of disproportionately screening out applicants in one of the above protected class groups, and (2) the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity. This type of claim was first recognized by the United States Supreme Court in Griggs v. Duke Power Company, where the Supreme Court held that Title VII “proscribes … practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. If an employment practice which operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited.” (Back in 1971, the Supreme Court used the word Negroes instead of African Americans or Black, which shows that even just 40 years ago, we had a long way to go). Then in 1991, Congress amended Title VII to include disparate impact claims by adding this language: “An unlawful employment practice based on disparate impact is established . . . if a complaining party demonstrates that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity.
So, under Title VII, there may be disparate impact discrimination claim if an employer’s criminal record screening policy or practice disproportionately screens out applicants of a particular race, national origin, or other protected class; and that such policy or practice is job related for the particular position and reflects a business necessity.
This is important to keep in mind as studies have shown that Blacks and Hispanics are incarcerated at higher rates relative to the rest of the US population. African Americans are incarcerated at a rate 5.6 times higher than Whites, and seven states had a Black-to-White ratio of incarceration that was 10 to1. In 2010, Black men were imprisoned nearly seven times the rate of White men and almost three times more than Hispanic men.
Given this, it becomes critical to look at each situation on a case by case basis to determine the employer’s motives for doing such screening.
There is hope for job applicants with prior criminal convictions in the form of state regulations banning discrimination based on prior convictions. States themselves are beginning to address the issue. On January 1, 2014, the legislature of the state of Minnesota’s “ban the box” statute goes into full effect. This law prohibits an employer from asking for prior criminal background information until the applicant is selected for an interview or given an unconditional offer of employment. The new law prohibits employers from asking applicants to self-report criminal background as well as prohibits the employer from conducting a background check. Only employers who are required to conduct a background check by law are exempt from the new statute. Will Ohio follow suit? Only time will tell.
If you feel that you are being discriminated based on your race, whatever race that may be, then call the right attorney. Race discrimination includes being harassed, fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, and denied wages. When you call the right attorney to schedule a free and confidential consultation at 866-797-6040, you will meet with a race discrimination lawyer from Spitz, The Employee’s Law Firm who will help you determine the best way to pursue your legal claims.
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