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Do I Have to Hire a Felon?

By Christopher Coble, Esq. | Last updated on

Apple recently received some bad publicity regarding its policy of prohibiting convicted felons from working on the construction of its new, 2.8 million square foot campus in Cupertino, California. According the San Francisco Chronicle, several workers lost their jobs working on the site because of past felonies.

Bad press is one thing, but is what Apple doing illegal? Are businesses allowed to have polices against hiring convicted felons?

Felony Discrimination

The Equal Employment Opportunity Commission enforces anti-employment discrimination laws, specifically Title VII of the Civil Rights Act of 1964. The EEOC issued guidelines that state, "if an employer's exclusionary policy or practice is not job related and consistent with business necessity," the employer could be in violation of Title VII.

Any hiring policy that discriminates based on felony status would receive a rational basis review from courts. Therefore, the EEOC requires that any exclusionary policy must be job related and consistent with a business necessity.

As an illustration, the EEOC's website compares a case in which it is OK to discriminate against a job applicant with a previous criminal conviction (a pre-school denying an applicant who pled guilty to indecent exposure two years prior) to one in which it is not (county animal control rejecting an applicant with 1 15-year-old welfare fraud conviction).

Policy in Practice

The EEOC also provides some guidance to employers in creating a hiring policy that complies with Title VII:

  • Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
  • Identify essential job requirements and the actual circumstances under which the jobs are performed.
  • Determine the specific offenses that may demonstrate unfitness for performing such jobs.
  • Identify the criminal offenses based on all available evidence.
  • Determine the duration of exclusions for criminal conduct based on all available evidence.
  • Include an individualized assessment.
  • Record the justification for the policy and procedures.
  • Note and keep a record of consultations and research considered in crafting the policy and procedures.

The EEOC is known for cracking down on not hiring convicted criminals, so before creating any blanket anti-felon hiring policy, you may want to consult with an experienced employment attorney in your area to ensure you are complying with federal employment statutes.

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