The Bars That Bind

On The Job, With a Conviction

By AJ Wagner

One of the issues facing many of those looking for employment is a criminal record. A conviction for committing a crime can often have far reaching and long lasting consequences for employment and advancement within a company.

Two weeks ago Leaders for Equality and Action in Dayton (LEAD) asked the City of Dayton and Montgomery County to establish laws for equal hiring that help those with a past they likely regret. LEAD has provided the City and County with guidance on how they would like to see the legislative bodies proceed, but guidance may also be available from the Federal government.

Last month the Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance that clarified the agency’s position on employment qualification for those with a criminal past. The advisory reminds employers that by denying employment, solely on the basis of a checked box next to the statement, “Have you ever been arrested for or convicted of a crime?” may have discriminatory consequences and therefore be in violation of the Civil Rights Act of 1964.

The EEOC Guidance is built on longstanding court decisions and other existing guidance documents that have been issued over the past twenty years, so there is really nothing new here. But by reaffirming the decisions and their positions in one document, the EEOC is making clear that the practice of making employment decisions based solely on an arrest or conviction is not acceptable practice.

The EEOC frames the problem within the context of America’s exploding prison population over the past twenty years. 1 in 17 whites born in the United States in this century will have a felony record. For Hispanics that number will be 1 in 6 and for African-Americans the number will be 1 in 3. Thus, using criminal convictions, without further analysis, as a screening tool will have a discriminatory effect.

But even further analysis can be problematic. Some states allow significant records to prospective employers including the names of those who have been placed on “Watch” lists. These lists are made up of people who may have done nothing wrong but have been seen with a known felon or other suspect in crime.

In a study conducted by the Department of Justice Bureau of Justice Statistics it was discovered that half of all FBI records do not list the outcomes of an arrest. This may lead an employer to assume a conviction where none exists. Misspellings, clerical errors and other inaccuracies also make a records review, in and of itself, unreliable. Since 92% of employers use background checks for all or some prospective employees, this is an important issue.

The EEOC Guidance notes that an arrest does not establish that criminal conduct has occurred and cautions that an exclusion based on an arrest, in itself, is not job related. A conviction record will usually serve as sufficient evidence that a person engaged in a particular conduct. However, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.

The Guidance affirms that employers must look at how the use of arrest and conviction information may cause disparate treatment and disparate impact between people of different races or ethnic origin. Specifically, the EEOC will look at any hiring decision for inconsistent use of information, biased testing and other statistical evidence that results in the exclusion or different treatment of members of a specific race or ethnicity.

The Guidance states, “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).” “Further”, the EEOC notes, “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.”

The EEOC acknowledges that a criminal record may be used if “job related and consistent with business necessity” and tells employers that they should validate the criminal conduct exclusion for the position in question in light of data or analysis about criminal conduct as related to subsequent work performance or behaviors. Consistent with a federal court’s decision in Green v. Missouri Pacific Railroad, the Guidance suggests employers develop a targeted screen considering at least the nature of the crime, the time elapsed and the nature of the job. The Guidance states, “The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”

The road for ex-felons will still be tough, but perhaps this Guidance will help those whose past is long gone and, hopefully, forgotten.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein.

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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