When Can a California Employer Ask A Job Applicant about Prior Arrests and Convictions?

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Arrests, Convictions, and the FEHA: When Does it Hurt to Ask?

By Calvin Chang, Esq.

INTRODUCTION

Some employers would be surprised to learn that liability for employment discrimination on the basis [1] of race can be established from a policy or practice of asking job applicants about prior arrests and convictions. Adverse employment actions, including denial of employment and promotions, based on prohibited inquiries, can cause an employer to run afoul of the California Fair Employment and Housing Act 2. The U.S. Supreme Court has held [3] that an individual belonging to a race that has a disproportionately higher rate of arrests and convictions may bring a cause of action for disparate impact discrimination. In order to avoid liability for disparate impact discrimination, an employer must adhere to statutory prohibitions against certain inquires, and ensure that any inquiry relating to past arrests and convictions is justified by a showing of job related business necessity. California employers are only permitted to inquire about the prior criminal history of job applicants and employees under certain circumstances. As such, a blanket policy of “no arrests and convictions" will be an unlawful practice under the FEHA. [4]

Under Cal. Gov’t Code section 12940(a), it is “unlawful for an employer to refuse to hire or employ a person or to refuse to select a person… or to bar or to discharge a person from employment… or to discriminate against a person in compensation or in terms, conditions, or privileges of employment" (because of one of the enumerated protected basis). [5] There are two types of employment discrimination - disparate treatment and disparate impact. [6] Under disparate treatment, it is unlawful to disqualify a person of one race for having a conviction or arrest record, while not disqualifying a person of another race. “Disparate impact" discrimination occurs, when regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, has a disproportionate adverse effect on members of the protected class. [7] Under disparate impact, an employer’s policy denying employment based on the existence of past convictions could be discriminatory, if persons of that race are disproportionally more likely to have criminal convictions.

DISPARATE IMPACT DISCRIMINATION

For employment discrimination under the FEHA, a plaintiff must prove that: (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive (Guz v. Bechtel Nat. Inc.). [8] A disparate impact analysis falls under the fourth requirement, turning on the issue of “other circumstances." In Griggs v. Duke Power, [9] the U.S. Supreme Court held that a plaintiff must show that a challenged policy discriminates against members of a protected class. The employer can overcome the showing of disparate impact by showing a “manifest relationship" between the policy and job performance." The second step became known as the “business necessity" defense. [10] The plaintiff can still overcome the business necessity defense by showing that an alternative policy [11] exists that would serve the employer’s legitimate goals as well as the challenged policy with less of a discriminatory effect.“ [12] It is this analysis that must guide any employer inquiry into the past arrests and convictions of an applicant or employee.

Disparate impact can exist when an applicant’s protected class is disproportionately more likely to have a criminal record because the class has been subjected to circumstances that have resulted in higher incidents of arrests and convictions. Courts and the U.S. Equal Employment Opportunity Commission (EEOC) have relied [13] on statistical evidence to establish a prima facie case of discrimination against Blacks, where arrest records are used in employment decisions. [14] For example, according to the California Department of Justice, in 2007, Blacks constituted 17% of all arrests 15 [16] Hispanics accounted for 41% of arrests and 36.6% of population. Whites accounted for 35.6% of arrests and for 42% of population. Thus, policies by employers that exclude candidates across the board, based on past arrest and convictions, would have a disparate impact on Blacks and Hispanics. Analogous Title VII cases apply in recognizing that a facially neutral selection criterion having a disparate impact is applicable to claims under the FEHA. [17] Similarly, the EEOC Guidelines for selections procedures relative to adverse impact on employment opportunities on a basis enumerated in the FEHA, have been adopted [18] by the California Fair Employment and Housing Commission (FEHC).

The prohibition against a blanket policy of “no arrests and convictions" applies, even despite any lack of finding that an employer had any purpose or history of discrimination. [19] Even a “bottom line" showing of one minority group's adequate representation in a job category, does not excuse an employment practice that has a discriminatory impact on members of that group. [20] Employers should also be cautioned that disparate impact discrimination also applies to actions undertaken to impose “invidious criteria" on the employees of its contractors - that result in unlawful employment practices against employees under their control. In Caston v. Methodist Medical Center, [21] an African-American janitorial worker, who had two prior felony convictions, brought a Title VII racial discrimination action against the hospital at which he had worked, after the hospital informed the contractor that it would not accept Plaintiff or any others with felony convictions. The court addressed the issue of third party interference liability, holding that the common law “right to control" test [22] applied to these facts.

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[1] Cal. Gov’t Code § 12940(a), includes: race, religious creed, color, national origin, ancestry, physical disability,

mental disability, medical condition, marital status, sex, age, or sexual orientation.

[2] Cal. Gov’t Code §12900, et seq.

[3] Griggs v. Duke Power, 401U.S. 424, 91S. Ct. 849, 28 L.Ed2d 158 (1971).

[4] Cal. Gov’t Code § 12900, et seq.

[5] Id. § 12940(a), see footnote 1.

[6] Heard v. Lockheed Missiles & Space Co., 52 Cal.Rptr.2d 620.

[7] Guz v. Bechtel Nat. Inc., 8 p.3D 1089 (Cal. 2000), at 1113, citing Griggs v. Duke Power, supra.

[8] Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 355.

[9] Griggs v. Duke Power,supra.

[10] Id.,supra.

[11] 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

[12] El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007), at 239.

[13]EEOC Policy Guidance on the Consideration of Arrest Records, Number 915.061, (Sept. 7, 1990).

[14] Gregory v. Litton Systems, 316 F.Supp. 401, 2 EPD ¶10,264 (C.D. Cal. 1970), aff’d, 472 F.3d 631 (9th Cir. 1972).

[15] California Dept. of Justice, Criminal Justice Statistics Center, Adult and Juvenile Arrests Reported, (2007), http://stats.doj.ca.gov/cjsc\_stats/prof07/00/22.htm.

[16] U.S. Census Bureau, QuickFacts(2008), http://quickfacts.census.gov/qfd/states/06000.html.

[17] City and County of San Francisco v. Fair Employment & Housing Com., 236 Cal.Rptr. 716 ,Cal.App.1.Dist.,1987

[18]Cal. Code of Reg§ 7287.47(a).

[19] Gregory v. Litton Systems, 472 F.2d 631 (9th Cir. 1972).

[20] Harris v. Civil Service Com., 65 Cal.App.4th 1356, 77 Cal.Rptr.2d 366 (1998), see also 29 C.F.R. §§ 1607.1, Cal. Code Reg. Title 2, § 7287.4(a).

[21] Caston v. Methodist Medical Center of Ill., 215 F. Supp. 2d 1002 (C.D. Ill. 2002).

[22] Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, at 1342 (D.C.Cir.1973).

[23]EEOC Compliance Manual, §15 "Race and Color Discrimination" (April 19, 2006).

[24] EEOC, supra.

[25] EEOC V. Arabian American Oil Co, 499 U.S. 244, 257, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (citing Skidmore v. Swift & Co., 323U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944).

[26] El v. Southeastern Pennsylvania Transportation Authority, supra, at 244.

[27] Cal. Gov’t Code § 12940 (see preamble).

[28] Civil Rights Act of 1964, § 701 et seq., 42 U.S.C.A. § 2000e, et seq.

[29] Id. at 236. (no record of any conviction within the last seven years for any other felony or any other misdemeanor in any category referenced below (specific reference omitted).

[30] El v. Southeastern Pennsylvania Transportation Authority, 479 F.3d 232 (3d Cir. 2007).

[31] Id., supra.

[32] Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975).

[33] EEOC, supra.

[34] Gregory v. Litton Sys., Inc., supra.

[35] Schware v. Board of Bar Examiners, 353U.S. 232, 241 (1957).

[36]Cal. Labor Code § 432.7(a).

[37] Id. §432.7(d), remedies are not in derogation of other rights.

[38] Id.§ 432.7(c).

[39] Id.§ 432.7(a).

[40]Cal. Code of Reg.§§ 7287.47(c)(1)(A), (B), and (C).

[41] 15 U.S.C. §1681c.

[42] Federal Controlled Substances Act ( 21 U.S.C. § 830(e)(1)(G)) permits retail pharmacies to ask applicants whether they had ever been convicted of any crime involving controlled substances, “notwithstanding state law." See also, Securities Exchange Act (15 U.S.C.A. § 78a, et seq.), records of arrests for larceny for employees of brokerage firms.

[43] _ Starbucks Corp._ v. Superior Court, 168 Cal.App.4th 1436, 86 Cal.Rptr.3d 482, at 488.

[44]Cal. Labor Code§ 432.7(e).

[45] Id.§ 432.7(f)(1).

[46] Id.§ 432.7(f)(2).

Additional Resources

PERMISSIBLE INQUIRIES - “BUSINESS NECESSITY” DEFENSE The EEOC Compliance Manual addresses convictions and arrest records and requires that employers “must also be able to justify such criteria as job related and consistent with business necessity.”[23] An employer must consider the nature and gravity of the offense, the time that has passed since the conviction and/or the completion of sentence, and the nature of the job held or sought.[24] In Title VII cases, the EEOC Guidelines are only entitled to “Skidmore” deference,[25] in accordance with the thoroughness of its research and the persuasiveness of its reasoning.[26] The FEHA provides an exception for practices that would otherwise be unlawful because of a disproportionate disparate impact, but are based on “bona fide occupational qualifications, or “where based upon applicable security regulations established by the United States or the State of California.”[27] The affirmative defense of business necessity has been held to defeat a Title VII racial discrimination claim,[28] where an employer had a policy of “… no record of any felony or misdemeanor conviction for any crime of moral turpitude or of violence against any person(s).[29] In El v. Southeastern Pennsylvania Transportation Authority,[30] a transportation driver-trainee with responsibility for transporting persons with mental and physical disabilities” was terminated because of a 40-year old homicide conviction.[31] Under the business necessity defense, an employer must show that a discriminatory hiring practice accurately, but not perfectly, ascertains an applicant’s ability to perform the job successfully. However, a blanket “no convictions” policy has been held to be actionable under Title VII when it had a disparate impact on Black applicants (Green v. Missouri Pacific Railroad).[32] The EEOC policy states that “a blanket exclusion of persons convicted of any crime thus would not be job-related and consistent with business necessity.”[33] UNLAWFUL INQUIRIES “ARRESTS ONLY” AND CERTAIN CONVICTIONS A distinction bears noting relating to any hiring criteria based solely on arrests. An arrest without conviction does not establish that a person engaged in misconduct. See Gregory v. Litton Sys., Inc.,[34] (judgment for Plaintiff who challenged employer policy of not hiring anyone who had been arrested on “a number of occasions,” where this threshold was undefined, and company had in its employ many persons who had been arrested), “The mere fact that a person has been arrested has very little, if any probative value in showing that he has engaged in misconduct.”[35] The EEOC Guidelines state that “the employer must also evaluate whether the applicant or employee actually engaged in the misconduct. It can do this by giving the employee an opportunity to explain.” Cal. Labor Code section 432.7(a) prohibits an employer (whether public or private) from asking an applicant to disclose information concerning any arrest or detention that did not result in conviction. An employer is also prohibited from utilizing such information in determining any condition of employment including hiring, promotion, or termination.[36] In addition[37] to potential liability under the FEHA, a violation of section 432.7 provides both criminal liability and supports a civil action[38] for treble actual damages, and attorney’s fees. An exception exists for inquiring about an arrest for which an employee or applicant is out on bail or on his or her own recognizance pending trial. [39] FEHC regulations prohibit an employer from seeking information regarding any arrest or detention that did not result in conviction; any conviction that has been sealed, expunged, or statutorily eradicated; any misdemeanor conviction for which probation has been successfully completed or otherwise discharged and judicially dismissed pursuant to Cal. Penal Code section 1203.4; or any arrest resulting in pretrial diversion.[40] The Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) prohibits the inclusion in any consumer report, “any records of arrest that from date of entry, antedate the report by more than seven years or until the governing statute of limitations has expired, whichever is the longer period.”[41] Under Cal. Civ. Code section 1786.18(a)(7), a consumer report may notinclude “records of arrest, indictment, information, misdemeanor complaint, or conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years…” An employer may not inquire about a conviction for possession of Marijuana for personal use that is more than two years old (Cal. Labor Code § 432.8). Federal preemptions exist under the Federal Controlled Substances Act[42] for employees of licensed pharmacies, and for common carrier railroad positions under the Railway Labor Act (Cal. Labor Code § 434). Questions on an application that require disclosure of past convictions must have a conspicuously placed disclaimer, stating the type of convictions that do not have to be disclosed. The disclaimer should be “immediately following the convictions question.”[43] BONA FIDE OCCUPATIONAL QUALIFICATIONS Although Cal. Labor Code section 432.7(a) prohibits an employer from inquiring about any arrest that did not result in conviction, there are a number of statutory exceptions based on bona fide occupational qualifications. These exceptions sanction employer inquiries into past arrests and convictions based on certain occupational qualifications and job related business necessity. Persons seeking employment or already employed as peace officers, or persons seeking employment for positions in criminal justice agencies are not covered by the prohibitions against arrests inquiries[44] [Cal. Labor Code §432.7(e)]. As such, applicants for any position in such agencies (i.e., California Dept. of Justice, California Dept. of Corrections and Rehabilitation) may be required to disclose all arrests and convictions, including arrests that did not result in conviction. An employer at a health facility for a position with regular access to patients, can require disclosure of arrests for any offense requiring registration as a sexual offender (Cal. Penal Code § 290).[45] An employer for a position with access to drugs and medications, can require disclosure of any arrest for any offense requiring narcotics registration (Cal. Health & Safety Code § 11590).[46] Unless prohibited by statute, even when no bona fide occupational disqualification exists, an employer may still inquire into a past arrest and conviction record of a prospective employee, when legitimately necessary based on job related business necessity. However,unless a specific conviction would statutorily bar employment in the classification, the use of past arrests and convictions information discovered as a result of permitted inquires, always requires an employer’s showing of legitimate job related business necessity. CONCLUSION Californiaemployers are prohibited from establishing a blanket policy of “no prior arrests and convictions.” This prohibition is founded under a disparate impact theory of employment discrimination. Unless one of the statutory exceptions applies, an employer is prohibited from inquiring about any arrest that did not result in a conviction. In the case of inquiring about past “arrests,” even when permitted by statute, any such inquiry must at least consider the actual culpable conduct, and not merely the fact a person was arrested. Although inquiry into prior convictions is generally allowed for convictions within seven years, the employment decision must be based on an individualized showing of job related business necessity. Although a bona fide occupation qualification and business necessity are an affirmative defense to a disparate impact claim, an employer must also consider whether a less discriminatory practice is available. Therefore, an employer would be well advised to develop a policy that complies with statutory requirements (both state and federal), and ensure that any inquiry or consideration of arrests and convictions are accurately based on occupational qualifications and job relatedbusiness necessity - or else it may be the employer on trial. ENDNOTES DISCLAIMER: Employment laws are complex and subject to change. This article does not create an attorney-client relationship and the information is provided as a topic guide. It should not be used as legal advice and each employer/employee should seek advice from a licensed attorney.

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