By Frank Weir
Mistakes made, of a criminal nature, can follow you the rest of your life as you seek a job, a profession, education.
So said Michigan Department of Civil Rights attorney David Stringer at a meeting in Ann Arbor last Friday. Stringer discussed, "The Employment Consequences of Criminal Behavior."
Stringer noted the obvious, that individuals convicted of a crime or arrested for a felony, are not a protected class and therefore have nothing to fall back on if they are not hired simply due to their criminal record.
But defense attorneys do find that employment practices can violate protections contained in Title VII of the Civil Rights Act.
"As a result of the 1999 Amendment to the Michigan Elliott-Larsen Civil Rights Act, employers may now seek information related to felony arrest," Stringer began.
"However, employers, with exception to law enforcement agencies, are still prohibited from maintaining a record of information regarding a misdemeanor arrest, detention, or disposition where a conviction did not result. MCL37.2205a.
"When a policy or practice of rejecting applicants based on arrest records has a disparate impact on a protected class, the arrest records must not only be related to the job at issue, but the employer must also evaluate whether the applicant or employee actually engaged in the misconduct. It can do this by giving the person the opportunity to explain and by making follow-up inquiries necessary to evaluate his/her credibility.
"There are two theories of discrimination currently recognized under Michigan's Elliott-Larsen and Title VII pertaining to race and other protected class claims which involve employer 'no conviction' policies. Those theories are disparate treatment and disparate impact.
"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 with a similar record. For example, an employer cannot reject African American applicants who have conviction records when it does not reject similarly situated white applicants. This example pertains to a claim of disparate treatment.
"In addition to avoiding disparate treatment in rejecting persons based on conviction or arrest records, upon a showing of disparate impact, employers also must be able to justify such criteria as job related and consistent with business necessity. This means that, with respect to conviction records, the employer must show that it considered the following three factors: (1) the nature and gravity of the offense(s); (2) the time that has passed since the conviction and/or completion of the sentence; and (3) the nature of the job held or sought.
"A blanket exclusion of persons convicted of any crime thus would not be job-related and consistent with business necessity. Instead, these factors must be applied to each circumstance. Generally, employers will be able to justify their decision when the conduct that was the basis of the conviction is related to the position, or if the conduct was particularly egregious."
Stringer emphasized the importance of seeking expungement for clients who have only one conviction and it has been five years since the conviction or release from prison, whichever is earlier.
"With the technology that we have now, criminal records can follow people everywhere. It's a life sentence for most and there's not a lot you can do about it.
"People make mistakes in life and to punish someone for the rest of their lives is a real problem. If an individual reoffends, then they aren't eligible for expungement so why not give someone with that one conviction another chance?"
Published: Thu, Mar 24, 2011