• 10 Million Reasons for Taking a Well-Reasoned Approach to Criminal Screening Policies
  • September 9, 2014 | Author: Sammy Sugiura Jr.
  • Law Firm: Burns White LLC - Pittsburgh Office
  • How much is a second chance worth?

    $10 million?

    Sixty cities and counties and twelve states currently comprise the growing “ban the box” movement in which criminal history inquiries have been removed from job applications.  However, the movement may soon be tested by an incident in Alexandria, Virginia in which Officer Peter Laboy was shot by taxi driver Kashif Bashir while attempting a routine traffic stop.  Officer Laboy filed a lawsuit alleging negligent hiring and negligent entrustment by the Alexandria Yellow Cab Company to the tune of $10 million in damages.

    As part of Officer Laboy’s claim, the parties will undoubtedly focus on Mr. Bashir’s past criminal conduct. A variety of news outlets have reported Mr. Bashir’s past criminal history as follows:

    • Failure to obey a traffic signal, 2007
    • Speeding, 2007
    • Failure to wear seat belt, 2007
    • Illegal sale of unapproved equipment, 2007
    • Speeding, 2009
    • Failure to pay full time and attention, 2010
    • Misdemeanor assault, 2011
    • Speeding, 2011
    • Tampering with a vehicle, 2011
    • Failure to pay attention, 2012
    • Failure to obey a highway sign, 2012
    • Violation of good behavior on a misdemeanor offense, 2012
    • Failure to obey a traffic signal, 2013

    A review of the above record paints a rather negative picture of Mr. Bashir; basically, a person that no employer, let alone cab company, would hire.  However, formatting Mr. Bashir’s history in the above manner masks what may have actually appeared in a background check.  If we look at the actual dispositions of Mr. Bashir’s cases, this is what we see:

    •  Failure to obey a traffic signal, 2007 [guilty]
    •  Speeding, 2007 [guilty]
    •  Failure to wear seat belt, 2007 [paid fine]
    •  Illegal sale of unapproved equipment, 2007 [dismissed]
    •  Speeding, 2009 [dismissed]
    •  Failure to pay full time and attention, 2010 [guilty]
    •  Misdemeanor assault, 2011 [nolle prose/dismissed]
    •  Speeding, 2011 [guilty]
    •  Tampering with a vehicle, 2011 [guilty]
    •  Failure to pay attention, 2012 [dismissed]
    •  Failure to obey a highway sign, 2012 [dismissed]
    •  Violation of good behavior on a misdemeanor offense, 2012 [dismissed]
    •  Failure to obey a traffic signal, 2013 [guilty]

    And as a four-year employee of the Alexandria Yellow Cab Company, Mr. Bashir’s criminal record actually looked like this at the time of his employment:

    •  Failure to obey a traffic signal, 2007 [guilty]
    •  Speeding, 2007 [guilty]
    •  Failure to wear seat belt, 2007 [paid fine]
    •  Illegal sale of unapproved equipment, 2007 [dismissed]
    •  Speeding, 2009 [dismissed]

    Would that record give you pause?  If you didn’t hire Mr. Bashir because of that record, could you still be subject to penalties?  The EEOC cautions that even neutral, screening policies for prospective employees may violate Title VII of the Civil Rights Act of 1964. So¿ what are employers supposed to do?

    If you’re going to craft a policy designed to screen applicants and employees for criminal conduct, it must be narrowly and specifically tailored to the essential requirements of a job and must also take into consideration actual job conditions that the employee would face.  If an employer decides to exclude all applicants based on convictions of Offense X, then they’ll need a business justification for doing so.  And an employer can’t simply respond by saying that the policy results in a larger number of qualified applicants for the company; that “more is better” approach was specifically rejected by the Supreme Court.  Instead, employers should consider the following:

    (1) Why a conviction for a particular offense demonstrates that an applicant/employee is not suited for that job

    (2) Usage of studies, data, or other research information in reaching the company’s position on applicants/employees’ conviction for Offense X

    (3) A determination of how long an applicant/employee with conviction for Offense X should be excluded (indefinite exclusions are generally discouraged unless supported by specific laws or due to the sensitive nature of a position, like a police officer),

    (4) Allowance for “individualized assessments” in which an applicant/employee with a conviction can explain the circumstances of that situation or why they are particularly suited for the job

    (5) Recording the company’s reasons for creating these policies

    (6) The implementation of procedures that allow for the uniform execution of these policies

    Even if the Alexandria Yellow Cab Company had followed all of the above recommendations, would it have made a difference when reviewing Mr. Bashir’s application or criminal history?  It might not have, which underscores the importance of continual reviews and updates of a company’s employees.  When reviewing employee profiles, companies should be cautious about the use of arrest records.  Countless courts have stated that evidence of an arrest without conviction has very little value when assessing an individual.  In fact, placing too much emphasis on an arrest record will likely violate Title VII because of its disproportionate impact on applicants and employees because of their color or national origin.

    Even with the threat of a $10 million lawsuit, patience and a well-reasoned approach are essential in avoiding liability under Title VII.  And if you think it makes financial sense to utilize a one-size-fits-all approach by excluding all applicants and employees with a criminal history, well, wait until Officer Laboy’s lawsuit unfolds before basing your decision on the tragic event in Alexandria.  Often times, information will surface that can change your perspective on what an employer should have done four years ago.