Criminal History and Illegal Employment Discrimination

Criminal HistoryWhen is it illegal for employers to consider an employees’ criminal history? Many employers in California are unaware that state law prohibits them from considering certain information related to applicants’ criminal backgrounds when they make employment decisions. Under Section 432 of the California Labor Code, employment decisions may not be based on the following information:

  • Records of arrests or detentions that did not lead to convictions;
  • Information related to an applicant participating in (or being referred to) a pretrial or post-trial diversion program;
  • Records of convictions that have been judicially dismissed, or ordered sealed pursuant to law; or
  • Records of non-felony convictions for possession of marijuana, if the convictions took place two or more years ago.

A proposed amendment to the California Code of Regulations would place additional prohibitions on which types of criminal history employers may consider when deciding who to hire, fire, promote, train, or discipline. Section 11017.1 does not specify any particular types of criminal history information that would be off limits. Rather, it would prevent employers from considering convictions that would have a disparate impact on employees and/or applicants, on the basis of characteristics such as race, gender, and national origin.

Criminal History and Defining “Disparate Impact”

If a selection procedure has an adverse impact on the hiring, promotion, or other employment opportunities of members of any race, sex or ethnic group, then it would be considered discriminatory, unless the procedure is both job-related and consistent with business necessity.

In other words, let’s say that studies show that members of a particular ethnic group are disproportionately likely to have been convicted of drug offenses. If an employer is refusing to hire applicants with histories of drug convictions, and a rejected applicant demonstrates that his or her ethnic group is adversely affected by this policy, then the burden would fall on the employer to justify the validity of its policy regarding drug convictions.

The employer could do this by showing that its policy is related to successful job performance, and measures a person’s fitness for the specific job. The amendment specifies that the employer must demonstrate that the policy/practice in question is appropriately tailored, by taking into account “at least” the following factors:

  • The nature or gravity of the offense or conduct;
  • The time that has passed since the offense or conduct and/or completion of the sentence; and
  • The nature of the job.

In order to show that the policy is appropriately tailored, the employer has two options. The first option is to conduct individualized assessments of the circumstances or qualifications of applicants or employees who are excluded by the policy.

If, however, the employer would rather use a “bright-line, across the board” policy of disqualification, then it has another option. In this case, the employer must show that the policy can distinguish between individuals who have acceptable levels of risk, and those who do not – and that the convictions have a direct and specific negative bearing on individuals’ qualifications.

Will Your Company Hiring Policies Be Affected?

If Section 11017.1 becomes law, California employers will need to consider whether disqualifying employees and applicants based on criminal history is worth the risk of litigation. If you are in Sonoma County, Mendocino County or Lake County California and are concerned about the possibility that your company’s policies have a disparate impact, it may be in your best interests to speak with an attorney. The Santa Rosa employment and labor law attorneys at Beck Law P.C. can provide you with the guidance you need.


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