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In Okwo v. Houston Methodist the Woodlands, No. 22-20457, 2023 WL 1256576, at *1 (5th Cir. Jan. 31, 2023), Ogochukwo J. Okwo was offered employment by Houston Methodist. However, the job offer was made conditional on the “successful completion of a criminal and education background check.” Using the information provided by Okwo, PreCheck located a record of a felony charge against Okwo filed in Harris County, Texas, for “Assault Family Violence-2nd Offender.” The final disposition of the charge was “dismissed.” Houston Methodist pulled the offer of employment. Okwo sued, alleging that Houston Methodist violated various provisions of the Fair Credit Reporting Act (“FCRA”); and also violated Title VII of the Civil Rights Act of 1964 base on race/color and national origin discrimination because he is black and from Nigeria. After his claims were dismissed, Okwo appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed the dismissal. Let’s look at why.

Can an employer refuse to hire me because I was charged with a felony that was ultimately dismissed?

In the United States, an employer can legally refuse to hire an applicant based on a prior criminal charge, even if it was ultimately dismissed. However, some states and cities have enacted “ban the box” laws, which prohibit employers from asking about criminal history on job applications and delay inquiries until later in the hiring process.

It is important to note that an employer may only consider relevant criminal history in making employment decisions and cannot discriminate against an applicant based on their race, national origin, religion, or other protected characteristics. Additionally, the Equal Employment Opportunity Commission (“EEOC”) recommends that employers consider factors such as the nature of the crime, the time elapsed since the crime was committed, and the nature of the job when evaluating an applicant’s criminal history.

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What does employment at will mean?

“Employment-at-will” is a doctrine that is followed in most US states. It provides that either the employer or the employee can terminate the employment relationship at any time, for any reason (with some exceptions), even a bad reason. This means that if you work for an employer that follows the employment-at-will doctrine, you can be terminated at any time, and for any reason, as long as the reason is not illegal. Similarly, if you work for an employer that follows the employment-at-will doctrine, you can quit at any time, and for any reason.

There are exceptions to the employment-at-will doctrine. For example, an employer cannot terminate an employee for a reason that violates anti-discrimination laws, such as race, gender, national origin, religion, age, or disability. An employer also cannot terminate an employee for engaging in protected concerted activity, such as reporting a safety hazard or discussing wages with coworkers.

It is important to note that some employment contracts or collective bargaining agreements may provide more job security and protection from termination than the employment-at-will doctrine.

Does the FCRA prevent employers from considering criminal history?

No, the Fair Credit Reporting Act (FCRA) does not prevent employers from considering an applicant’s criminal history when making hiring decisions. However, the FCRA does regulate the use of consumer reports, including criminal background reports, by employers in making employment decisions.

Under the FCRA, an employer must provide written disclosure to an applicant and get the applicant’s written authorization before obtaining a consumer report, such as a criminal background report, for employment purposes. If an employer takes adverse action against an applicant based in whole or in part on information contained in a consumer report, the FCRA requires the employer to provide the applicant with a pre-adverse action notice, a copy of the consumer report, and a summary of the applicant’s rights under the FCRA.

Okwo did challenge the district court’s dismissal of his FCRA claims, which dismissed the claim because he did not assert that Houston Methodist is a “consumer reporting agency” under 15 U.S.C. § 1681d(d)(3).

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How do you prove disparate treatment under Title VII?

Disparate treatment is a form of employment discrimination that occurs when an employer treats an employee differently based on a protected characteristic, such as race, color, national origin, sex, religion, or age. Under Title VII of the Civil Rights Act of 1964, an employee can prove disparate treatment by showing that:

  1. The employee belongs to a protected class.
  2. The employee was subjected to an adverse employment action, such as being fired, demoted, or not being hired.
  3. The employee was qualified for the job and was performing it satisfactorily.
  4. The employer treated similarly situated employees outside of the protected class more favorably.
  5. There are two methods to prove disparate treatment: the direct method and the indirect method.

Direct method: The direct method involves direct or circumstantial evidence that shows that the employer intended to discriminate. This can include evidence of discriminatory remarks, biased treatment, or a pattern of treating similarly situated employees differently based on a protected characteristic.

Indirect method: The indirect method is also known as the McDonnell Douglas burden-shifting framework. It involves a three-step process:

  1. The employee must establish a prima facie case of discrimination by showing that they belong to a protected class, that they suffered an adverse employment action, and that they were qualified for the job.
  2. If the employee establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action.
  3. If the employer provides a non-discriminatory reason, the burden shifts back to the employee to show that the employer’s stated reason is a pretext for discrimination.

It is important to note that regardless of which method is used, the ultimate burden of proof remains with the employee to prove that the adverse employment action was the result of discrimination based on a protected characteristic.

Certainly, it would violate Title VII if an employer only refused to hire a Black applicant with dropped criminal charges but hired White applicants with similarly dropped charges. But there was no such evidence asserted in Okwo. Because Okwo failed to allege that any White applicants were treated better, the United States Court of Appeals for the Fifth Circuit had little trouble affirming the dismissal.

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Did Okwa have any recourse?

Although not raised by his attorneys, Okwo may have had a decent breach of contract case. He was offered a job conditioned on a “successful” criminal background check. Assuming that the common understanding of “successful” is no criminal convictions, the employer should have been contractually obligated to employ Okwo when the report showed no convictions. His case would have been even stronger had he gave up or lost other job opportunities while waiting for the results.

This is a just another critical reason to hire the best employee’s rights law firm that you can find near you.

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Should I sue my employer?

Best Employment Lawyer Answer: Nothing you will read online will give you that answer. Employment laws are complex. Your best option is to consult with a knowledgeable employment law attorney regarding the particular facts of your situation. If you call Spitz, The Employee’s Law Firm, our team will schedule you with a free and confidential consultation with one of our attorneys. (Read: What is the Spitz No Fee Guarantee?). Call our lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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