Employers are sometimes forced to walk a narrow line between treating applicants with criminal backgrounds fairly and minimizing hiring risks. The problem is that the employers will be held accountable if something goes wrong on either side of this path. They can be sued for negligent hiring if an employee goes berserk, and they can be sued for discrimination if their hiring policies are too broadly exclusionary.
Employers ought not to be held responsible for social policies that promote hiring of the previously-convicted, yet in all fairness, applicants ought not to be excluded unless their criminal histories are directly relevant to the job in question. We have always advocated for well-designed background screening programs that meet the criteria that adverse actions are based on job-related factors that are a business necessity.
Nevertheless, even well-meaning employers can have difficulties when something goes wrong. Here are two stories, one about the rock and one about the hard place, that illustrate the pitfalls of improper background screening programs.
Story #1: Ex-Con Driving Bus That Crashed, Killing 15
Ophadell Williams was driving a busload of gamblers home from a casino in the early morning when he lost control and crashed, killing 15 passengers. It turned out that Mr. Williams had multiple convictions, including speeding and driving without a license, as well as a felony conviction for manslaughter. He was in violation of several New York state laws, yet he held a valid commercial driver’s license.
The accident was widely reported on television and the internet by NBC News, and was picked up by many local outlets. The story was frequently aired over the year and a half after the accident until Williams’ trial concluded. Both the bus company and the casino where Williams took the gamblers were prominently associated with the disaster, suffering reputational loss and business damage. Governor Andrew Cuomo of New York even launched an investigation into how Williams was able to obtain a valid driver’s license.
In hindsight, it is not possible to ascertain if the accident would have happened if better background screening had been used. Williams was actually charged with manslaughter due to falling asleep, but was later acquitted of 53 out of 54 charges. However, as NY Daily News reports, the acquittal on criminal charges did not stop people from suing Williams and his “now defunct former employer,” World Wide Tours.
It is true that a more thorough background check by either the state or the bus company might have offered a better defense against a negligent hiring charge. The state or the bus company could have known about Williams’ background, and perhaps could have acted to exclude him based on his driving record.
Your takeaway here might be that the State of New York should use background information much more stringently. But then, there’s the hard place.
Story #2: Public Transit Agency Taken to Task for Blanket Exclusion Policy
dcist.com reported that the Washington [D.C.] Metropolitan Area Transit Authority (WMATA) developed a hiring policy that took into account stakeholder input, the background screening policies of other transit agencies, case law, and Title VII of the Civil Rights Act. The policy does not automatically exclude an applicant with a criminal background.
However, the policy does require the permanent exclusion of an applicant for a public-facing position if they have specific convictions. A reasonable person might agree that a person convicted of murder, assault, rape, or acts of terror should be disqualified from a “public-facing” job. But convictions for various property crimes, possession of a controlled substance, or possession of a weapon might not be so clear.
WMATA was the target of city council resolutions and NAACP challenges for this very reason. Councilmember Muriel Bowser argued in a resolution that WMATA should consider criminal background “as one of several factors in a holistic review of job applicants.” The resolution goes on to reaffirm the policy goal of hiring more “returning citizens.”
It seems that the Councilmember is arguing that applicants should have an individualized assessment similar to the guidance offered by EEOC. This is a clear case of asking for a more personalized use of criminal background information, which could challenge any adverse action based on a strict use of a conviction history.
Hopefully, people hired under the more lenient process would behave. The transit authority would likely be sued if they didn’t.
Navigate the Narrow Path
We see no option for employers except to persist in linking background screening to job requirements. Blanket exclusions will continue to be challenged at some level of government or courts, yet mistakes in hiring can have terrible consequences. To stay on this narrow path, you need the best information you can get concerning the applicant.
Your background screening program cannot be an afterthought or just a routine “to-do.”