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My Employer Fired Me Because I Have a Felony Conviction - Can They Do That?

Posted by attorney James Rowe

A Federal Court recently dismissed a case claiming that his firing due to a felony conviction on his criminal record was discriminatory based upon race. The Court dismissed the case because the plaintiff was not a member of a protected class, i.e., he was not a minority. However, the Court did not address the elephant in the room: was the firing illegal. Of course, to file a suit you'd likely have to prove you were fired because of the felony conviction, and not because you lied about it on your application. Therefore, a minority employee that is fired (or not hired) due to a felony conviction that he/she disclosed, and for no other articulable reason, may consider filing a lawsuit. Check out the below excerpt, and best of luck in pursuing your claim. I encourage you to seek justice and hold the employer accountable if indeed the firing was due to a felony conviction and was discriminatory in nature. Below is an analytical excerpt obtained with due credit from here (link): Rejecting Applicant with a Felony Conviction: Illegal? Do state and federal anti-bias laws protect employees or applicants who are convicted of a felony offense from discrimination? A federal court sitting in Pennsylvania recently considered that issue. What happened: A man who had plead guilty in New York State in 2004 to one count of Attempted Dissemination of Indecent Material to a Minor in the First Degree (a felony) applied for a job at the Wal-Mart store in Wilkes-Barre in July 2007. Wal-Mart managers interviewed him and offered him a job as a cashier, pending the outcome of a background check and drug test. At some point during the interview or shortly thereafter, Wal-Mart told the applicant that he would not pass the background check because of his prior felony. The applicant then decided to revoke his permission for the background check ... and he did not get the position. He sued Wal-Mart under federal anti discrimination law, Title VII of the Civil Rights Act of 1964, which bars bias based on race, color, religion, sex, or national origin. Despite the fact that conviction of a felony isn't among the protected categories in the law, the applicant pursued his claim on a theory that Wal-Mart's policy of refusing to hire felony sex offenders has a disparate impact against racial minorities because they are more likely to have been convicted of a felony. Wal-Mart asked the court to dismiss the case. What the court said. Decisions of the U.S. Supreme Court hold that employment practices which may be neutral on their faces may operate to perpetuate prior discrimination. In response to those decisions, Title VII itself was amended to state that an unlawful employment practice based on disparate impact is established [if] a complaining party demonstrates that a company uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin, and the company can't show that the practice is job related and consistent with business necessity. Here, however, the court found that the applicant failed to state a claim on which relief could be granted for the simple reason that he was admittedly not a racial minority. It decided that he wasn't in a position to challenge such a policy because it did not have a disparate impact on a protected class of which he is a member. The court dismissed the complaint for failure to state a claim upon which relief may be granted. Levine v. WalMart Stores, U.S. District Court for the Middle District of Pennsylvania, Case No. 4:08-CV-114 (1/23/08). Point to remember: Employment policies that exclude individuals based on their criminal history may violate Title VII because such policies disproportionately impact minorities, as they are arrested and convicted at a rate disproportionate to their representation in the population.

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