Yes, unless the business of your company is such that rejecting all applicants for any job whatsoever based on any type of criminal conviction in the last 10 years would be a job-related requirement that is consistent with business necessity.
Title VII and criminal record screening. Although an employer may conduct pre-employment inquiries about criminal records without violating Title VII of the Civil Rights Act of 1964, using criminal records to make employment decisions violates Title VII when it is done in a discriminatory manner, according to the Equal Employment Opportunity Commission (EEOC). Because African-Americans and Hispanics are disproportionately convicted of crimes, using criminal history information to exclude applicants from employment runs the risk of resulting in a disparate (adverse) impact on these particular groups.
When there is such an adverse impact, criminal history information may be used to make employment decisions only when it “is job related for the position in question and consistent with business necessity,” according to the EEOC. Therefore, if your company’s policy will be applied to exclude applicants based on criminal convictions, the criminal conduct must be recent enough and job-related enough to predict performance in the particular job sought in light of the duties and responsibilities of that position.
The EEOC has identified these factors for consideration in making this assessment:
- the nature and gravity of the offense(s);
- the amount of time that has passed since the conviction and/or completion of the sentence; and
- the nature of the job held or sought.
Blanket policies. In most cases, a blanket policy of excluding anyone from employment who has a criminal conviction — felony or misdemeanor — from being hired for any job whatsoever would seem unlikely to meet these standards.
Given that the use of criminal records is likely to result in an adverse impact on some minority groups, consider revising the policy to narrow exclusions from employment based on particular misdemeanor and felony convictions that relate to the specific duties and responsibilities of the job for which an applicant may apply. As to each position or type of position, your company also should reevaluate how far back in time a criminal conviction remains relevant.
Source: EEOC informal discussion letter, December 19, 2011, http://www.eeoc.gov/eeoc/foia/letters/2011/title_vii_epa_information_collection.html; Questions and Answers About Race and Color Discrimination in Employment,