As demonstrated by a case filed in federal district court in New York last week, the use of criminal background checks in hiring decisions can potentially subject an employer to liability under Title VII.

In Arroyo v. Accenture, LLP, the plaintiff had been employed by the consulting firm, Accenture, as a contract worker for over a year when he was offered a permanent position subject only to the results of a background check.  The background check revealed that the plaintiff had previously been convicted and incarcerated for vehicular homicide, prompting Accenture to withdraw its offer of the permanent position and terminate his contract position.

The plaintiff has now filed suit, alleging that Accenture’s policy discriminates against qualified applicants whose criminal history has no bearing on their fitness or ability to perform the job and has a disparate impact on African-Americans and Latinos, such as the plaintiff, whose criminal conviction rates exceed those of Caucasians. 

Criminal background policies pursuant to which a job applicant can be rejected for any criminal conviction are, generally, considered to be invalid under Title VII.  Criminal convictions can only be used in hiring decisions to the extent that they would be relevant to the applicant’s ability to perform the specific job in question.  In making a decision, the employer should consider the nature of the job, the nature and seriousness of the offense, and the length of time that has elapsed since the conviction. 

To the extent that the plaintiff will be able to prove that Accenture utilized a so-called “blanket policy” in which it would disqualify any job applicant convicted of any crime, he will have a good chance of prevailing.

This newsletter is a publication of Nochumson P.C. and is intended for general information only. It should not be construed as legal advice with respect to any particular situation, and readers should not act upon information contained in this newsletter without first consulting an attorney. Copyright © 2009.