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Bryan E. Kuhn
Counselor at Law, P.C.
Business & Employment Law Attorney

Felony Records

Peoplemark is a temporary-employment agency with offices in Michigan, Tennessee, Kentucky, and Florida. Peoplemark’s application form asks applicants whether they have a felony record. The criminal records of all applicants are also independently investigated by Peoplemark. In 2005, an African American named Sherri Scott with a felony conviction submitted an application to Peoplemark’s Grand Rapids office. Peoplemark did not refer Ms. Scott for employment. Because of this refusal, Ms. Scott filed a charge of discrimination with the Equal Employment Opportunity Commission (hereinafter “EEOC”), alleging that Peoplemark denied her application because of her felony record.

The EEOC launched an investigation in light of Ms. Scott’s allegations. As part of the investigation, the EEOC contacted Peoplemark’s Vice President and Associate General Counsel, who informed the EEOC that Peoplemark had a companywide policy of rejecting felony applications. Based on this statement, the EEOC determined that Peoplemark had violated Title VII of the Civil Rights Act, because such a general policy is discriminatory. In September 2008, the EEOC filed a class action lawsuit on behalf of Ms. Scott and a class of similarly situated persons stating that the hiring practices and discriminatory general policy had a disparate impact on African American applicants.

As part of the investigation, Peoplemark proved that, contrary to the Vice President and Associate General Counsel’s statement, they did not have a companywide policy of rejecting felon applicants because they had in fact referred felons to numerous job openings. In 2009, Peoplemark provided the EEOC with a copy of its e-database which indicated there was not a companywide policy of rejecting all felon applicants. Peoplemark filed a motion for summary judgment in February 2010 and the parties agreed to voluntarily dismiss the case with prejudice in March 2010.

The Fair Credit Reporting Act (hereinafter “FRCA”) and the EEOC provide a legal framework under which consumer reporting agencies and employers report and use criminal records. The FRCA establishes several procedures for employers to follow when they obtain criminal history information from third-party consumer reporting agencies. Title VII prohibits employers from treating job applications with the same criminal records differently because of their race, color, religion, sex, or national origin, called disparate treatment discrimination. Second, even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately exclude people of a particular race called disparate impact discrimination. The employer must show that such exclusion is “job related and consistent with business necessity” for the position in question or the exclusion is unlawful. A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore, will violate Title VII, unless it is required by federal law; for example a federal law may prohibit felons from working with children.

Similarly, Colorado’s state laws limit the use of arrest and conviction records by prospective employers. According to the Colorado Civil Rights Division, questions concerning arrests are not permitted and are considered discriminatory. Inquiries about convictions are limited to those that are job-related.

If you have a question about a job application or if you feel that you were discriminated against because of a conviction or arrest, contact us at / to discuss your legal rights.

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