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ADVERSE EMPLOYMENT CONSEQUENCES

TRIGGERED BY CRIMINAL CONVICTIONS:

RECENT CASES INTERPRET STATE STATUTES

PROHIBITING DISCRIMINATION

Christine Neylon O’Brien*

Jonathan J. Darrow**

I. I

NTRODUCTION

In a scene from the movie Good Will Hunting,

an M.I.T.

mathematics professor mistakenly reprimands Will, the brilliant

young janitor played by Matt Damon, for writing on the blackboard

where he is actually solving an impossibly difficult equation. After

the professor realizes that Will has solved the problem rather than

defaced the board, he tracks down Will’s supervisor in order to

locate Will. The supervisor responds that Will obtained his job

through his “P.O.,” an abbreviation for probation officer. The

professor pauses over this revelation; perhaps this colloquialism

represents a phenomenon seen more frequently within Will’s

socioeconomic class than in the upper echelons of the academic

world. The culture clash and class gap is apparent between the two

characters—the professor initially seems not to have had the same

exposure to the vagaries of the criminal justice system and its

lingering requirements on ex-offenders, such as the need to

maintain contact with a probation officer. Will knows what those

requirements and restrictions are, and how they hover over his daily

life, seemingly limiting his freedom, choices, and opportunities for

the future. An orphan who has been abused in multiple foster

homes, Will portrays the sort of psychologically troubled youth who

continually shoots himself in the foot each time he starts to walk

* Professor and Chair of Business Law, Carroll School of Management,

Boston College. B.A. Boston College; J.D. Boston College Law School. The

authors wish to express their appreciation to Professors David P. Twomey and

Stephanie Greene of Boston College for reviewing an earlier draft of this article

and providing helpful comments.

** Assistant Professor of Business Law, Plymouth State University. B.S.

Cornell University; J.D. Duke University; M.B.A. Boston College.

1. G

OOD WILL HUNTING (Miramax Films 1997).

992 WAKE FOREST LAW REVIEW [Vol. 42

normally again. The professor catches on fast and assists Will in

dealing with his legal problems, partly because he hopes to cultivate

Will’s talent. Perhaps one subtle message in the film is that society

and potential employers are willing to overlook the past offenses of

individuals who have something extraordinary to offer, such as

brains, beauty, writing, acting, or athletic ability. The ordinary

person with a criminal record, however, is unlikely to be as

fortunate as the mathematical genius portrayed in Good Will

Hunting; rather, he is more likely to carry the stigma of a criminal

conviction like a proverbial scarlet letter

and encounter a myriad of

barriers to employment.

This Article surveys recent adverse employment action cases

based on employees’ criminal convictions. The various formulations

of anti-discrimination legislation adopted by Hawaii, Wisconsin,

Pennsylvania, and New York are analyzed and compared.

The

2. See Ben Geiger, The Case for Treating Ex-Offenders as a Suspect Class,

94 C

AL. L. REV. 1191, 1200 (2006) (analogizing having a criminal record to

wearing a “digital scarlet letter”); Devah Pager, Double Jeopardy: Race, Crime,

and Getting a Job, 2005 W

IS. L. REV. 617, 617–22 (discussing the stigma of

conviction as a negative credential, and noting that unemployment rates for ex-

offenders range from 25–40%, almost two-thirds of those incarcerated will be

charged with new crimes after release, and the incarceration rate for young

black men is at 28% and this percentage rises to over 60% for those young black

men who are high school dropouts).

3. This Article primarily focuses on employment issues in the private

sector and does not deal with employment license restrictions for those with

criminal convictions, or the many other collateral consequences of conviction

such as loss of the right to vote, serve on a jury or in the armed forces, hold

federal office or employment, work for a labor union or pension plan, participate

in federal contracts or programs, or receive benefits under various federal

programs (such as Social Security, public housing, or educational loans). Nor

does this Article deal with privacy issues relating to criminal offender record

systems. For a discussion of employment licensing issues, see Miriam J.

Aukerman, The Somewhat Suspect Class: Towards a Constitutional Framework

for Evaluating Occupational Restrictions Affecting People with Criminal

Records, 7 J.L. S

OC’Y 18, 22–24, 85 (2005) (focusing on occupational restrictions

and recommending treatment of those with criminal records as a suspect class

due to their lack of political power and the history of prejudice and

discrimination in law based upon criminal records); Brian K. Pinaire, Milton J.

Heumann, & Jennifer Lerman, Barred from the Bar: The Process, Politics, and

Policy Implications of Discipline for Attorney Felony Offenders, 13 V

A. J. SOC.

OL’Y & L. 290, 292, 328–29 (2006) (discussing state statutory restrictions on

former felony offenders in a range of trades and professions including barbers,

nurses, and attorneys, and noting the American Bar Association’s assessment

that the “crazy-quilt” of state and federal laws impedes re-entry of offenders).

For a discussion of laws imposing collateral consequences on those with

criminal records, see O

FFICE OF THE PARDON ATTORNEY, U.S. DEP’T OF JUSTICE,

FEDERAL STATUTES IMPOSING COLLATERAL CONSEQUENCES UPON CONVICTION

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 993

ability of employers to use post-hoc discovery of criminal convictions

to justify prior adverse employment actions is discussed, drawing

examples from Wisconsin, Minnesota, and Oklahoma. Recently

promulgated city and county ordinances prohibiting discrimination

are described, as is the limited scope of protection available under

existing federal law. The Article concludes that existing protections

are both inconsistent and, in many cases, insufficient, and suggests

that existing federal laws be amended to bring people with criminal

histories more directly within the scope of their coverage.

II. T

HE IMPACT OF CRIMINAL CONVICTIONS ON EMPLOYMENT:

HYPOTHETICAL SCENARIOS AND PUBLIC POLICY CONCERNS

When is a person’s history relevant to the present? Should

solidly performing, productive workers be discharged based on

crimes from the past that were committed prior to employment? If a

crime is committed during the period of employment, should that

crime be treated any differently than one committed prior to the

period of employment, and how should crimes committed after

discharge impact remedies in an employment discrimination or

wrongful termination lawsuit? What happens when an individual

has a record of a prior criminal conviction that is not discovered

until after the hiring process? Should this after-acquired

information trigger adverse employment consequences including

termination? A confounding variable in these cases is whether the

employee falsified an employment application to conceal the

conviction. In many instances, such falsification alone leads to

termination because employers will not countenance application

fraud. Finally, what if an employee is terminated and evidence of a

prior criminal conviction is revealed during discovery in a

(2002), available at http://www.usdoj.gov/pardon/collateral_consequences.pdf.

For an excellent discussion of the labyrinth of collateral sanctions as well as

their impact on education, employment, and the “social safety net,” see Deborah

N. Archer & Kele S. Williams, Making America “The Land of Second Chances”:

Restoring Socioeconomic Rights for Ex-Offenders, 30 N.Y.U. R

EV. L. & SOC.

HANGE 527 (2006). See also Pager, supra note 2, at 620–21 (discussing the

routine legal discrimination ex-offenders suffer, including loss of access to jobs,

housing, educational loans, welfare benefits, and political participation). For a

discussion of some of the issues arising with respect to privacy and criminal

records systems in Massachusetts, see T

HE BOSTON FOUNDATION, CORI:

BALANCING INDIVIDUAL RIGHTS AND PUBLIC ACCESS: CHALLENGES OF THE

CRIMINAL OFFENDER RECORD SYSTEM AND OPPORTUNITIES FOR REFORM (2005),

available at http://www.tbf.org/uploadedFiles/CORI%20Report.pdf. See also

Geiger, supra note 2, at 1198–200 (discussing problems ex-offenders encounter

with employment and housing due to availability of criminal records to the

general public via the internet).

994 WAKE FOREST LAW REVIEW [Vol. 42

subsequent employment discrimination or wrongful termination

lawsuit? How should this newly discovered evidence affect an

employer’s liability or a former employee’s remedy?

If an employer discovers an applicant’s conviction before hiring,

there is an opportunity to assess the relationship between the

conviction and the potential position, i.e., to consider whether the

conviction is reasonably related or sufficiently relevant to the

applicant’s ability to do the job such that it disqualifies him from

employment. When an employee commits a crime during the term

of employment, employers may have human resource policies in

place that dictate suspension or termination if the crime is serious

enough to warrant discipline or discharge. Some employers may

shun the commission of any illegality by their employees, no matter

how small the infraction, fearing negative publicity and loss of

reputation or goodwill. Criminal activity violates the rules of

society, and employers may want to distance themselves from

employees who break those rules. If a crime is committed while on

the job—for example, the employee is convicted of driving under the

influence during the course of employment, working under the

influence, or committing an act of violence—the employer is exposed

to numerous legal risks. Employers must weigh potential liability in

tort to other employees, customers, or third parties who are injured

by their employees under theories of negligent hiring or retention.

Monetary and public policy concerns are likely to dictate an

employee’s suspension pending successful completion of a

rehabilitation or employee-assistance program, or in many

instances, an employee’s immediate termination.

The issue of how employers treat ex-offenders is of far-reaching

concern because as many as one in five individuals in America have

a criminal history.

The trend in national policy toward being

“tough on crime,” as well as the focus on the “war on drugs,” have

led to an increase in the number of criminal convictions, as well as

in the collateral consequences that negatively impact access to

federal welfare benefits, educational programs, certain types of

4. See John E. Matejkovic & Margaret E. Matejkovic, Whom to Hire:

Rampant Misrepresentations of Credentials Mandate the Prudent Employer

Make Informed Hiring Decisions, 39 C

REIGHTON L. REV. 827 (2006) (noting the

prevalence of false credentials and recommending that employers check

references and investigate the backgrounds of applicants at the time of hire);

Seth B. Barnett, Note, Negligent Retention: Does the Imposition of Liability on

Employers for Employee Violence Contradict the Public Policy of Providing Ex-

Felons With Employment Opportunities?, 37 S

UFFOLK U. L. REV. 1067, 1070–80

(2004) (discussing the theory of negligent retention and employers’ duties to

various stakeholders, as well as the issue of ex-offender employment).

5. Geiger, supra note 2, at 1193.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 995

employment, and public housing.

If one of the goals of our legal

system is to rehabilitate those who break the law, and employment

contributes to rehabilitation and discourages criminal recidivism,

then work for those with criminal convictions has a value to society

that exceeds the wages those employees earn.

The public policy

issues involved are significant and require a balancing of the various

interests at stake. The financial and legal well-being of employers

must be weighed against the safety of other employees and

customers, the actual employability of criminal offenders as well as

their best interests, and the welfare of all members of society.

Compliance with employment anti-discrimination statutes that

provide protection for prior and current criminal offenders should be

one important consideration of employers. Employers should

develop lawful and logical internal policies regarding pre-

employment, current employment, and post-employment evidence of

records of arrests and criminal convictions.

III. A

SURVEY OF RECENT CASES APPLYING PERTINENT STATE

STATUTES

Several states have promulgated statutes addressing

employment discrimination with respect to those with criminal

records.

Many of these statutes are of limited scope, however,

frequently only applying to public employers or containing other

6. See Michael Pinard & Anthony C. Thompson, Offender Reentry and the

Collateral Consequences of Criminal Convictions: An Introduction, 30 N.Y.U.

EV. L. & SOC. CHANGE 585, 595–96 (2006).

7. See MINN. STAT. § 364.01 (2006) (“The opportunity [for criminal

offenders] to secure employment . . . is essential to rehabilitation and the

resumption of the responsibilities of citizenship.”); Leroy D. Clark, A Civil

Rights Task: Removing Barriers to Employment of Ex-Convicts, 38 U.S.F. L.

EV. 193, 200–01 (1993) (noting that unemployment is strongly correlated with

recidivism); Christopher Uggen & Jeremy Staff, Work as a Turning Point for

Criminal Offenders, C

ORRECTIONS MGMT. Q., Fall 2001, at 1, 2 (“Almost all of

the classic criminological theories have hypothesized a negative relationship

between some aspect of employment and . . . recidivism.”); Elizabeth A. Gerlach,

Comment, The Background Check Balancing Act: Protecting Applicants with

Criminal Convictions While Encouraging Criminal Background Checks in

Hiring, 8 U. P

A. J. LAB. & EMP. L. 981, 981–82 (2006) (discussing the

importance of meaningful employment for those criminal offenders who have

paid their debt to society in order to avoid recidivism); Elena Saxonhouse, Note,

Unequal Protection: Comparing Former Felons’ Challenges to

Disenfranchisement and Employment Discrimination, 56 S

TAN. L. REV. 1597,

1611 & n.79 (2004) (discussing research indicating that work reduces recidivism

of ex-offenders).

8. See infra Part III.A–F.

996 WAKE FOREST LAW REVIEW [Vol. 42

restrictions.

Among the states with more comprehensive legislation

broadly protecting ex-offenders against employment discrimination

by both public and private employers are Hawaii, Wisconsin,

Pennsylvania, and New York.

Even among these four states, the

range of protection is dramatic: Wisconsin, for example, has enacted

comprehensive, employee-favorable legislation that prohibits

discrimination unless a conviction record “substantially relate[s] to

the circumstances of the particular job,”

a high standard for

employers to meet; at the other extreme is Pennsylvania, whose

anemic anti-discrimination statute permits employers to

discriminate if the applicant’s conviction merely “relate[s] to” the

position.

Legislation in New York and Hawaii falls somewhere in

between.

A. Hawaii: The Equal Protection Clause’s “Rational Basis” Test Is

Not the Standard Under Hawaiian Law

A recent case from Hawaii illustrates the complex legal and

public policy issues that inhere in cases where employers discover

prior criminal convictions during the term of employment.

Wright v. Home Depot U.S.A., Inc., the Supreme Court of Hawaii

vacated a lower court judgment dismissing a former employee’s

claim that his discharge violated the state’s law against

discrimination.

In 1996, Jon Wright pled guilty to and was

convicted of using the controlled substance methamphetamine.

received a suspended sentence and two years of probation.

In April

2001, approximately five years after his conviction, Wright was

hired by Home Depot in Maui where he passed a drug test prior to

employment.

Apparently, at the time of hire, Wright did not

disclose his conviction, and Home Depot did not check his criminal

9. See infra Part III.E.

10. H

AW. REV. STAT. § 378-1 to -6 (1993 & Supp. 2006); WIS. STAT. §§

111.325–111.335 (2003); 18 P

A. CONS. STAT. ANN. § 9125 (West 2000); N.Y.

CORRECT. LAW §§ 750–55 (McKinney 2003) (amended in 2007).

11. WIS. STAT. § 111.335(1)(c)(1) (2003).

12. 18 P

A. CONS. STAT. ANN. § 9125(b) (West 2000).

13. See Wright v. Home Depot U.S.A., Inc., 142 P.3d 265 (Haw. 2006); see

also High Court Reinstates Employee’s Challenge to Discharge Based on Past

Drug Conviction, D

AILY LAB. REP., Sept. 13, 2006, at A-3 (discussing the court’s

decision in Wright that whether a five-year-old drug conviction is rationally

related to a sales job is a triable issue); Case Notes, H

AW. B.J., Nov. 2006, at 26,

26 (summarizing Wright).

14. Wright, 142 P.3d at 276.

15. Id. at 267–68.

16. Id. at 268.

17. Id.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 997

history.

In September 2002, more than a year after he was hired, Wright

applied for a promotion to department supervisor.

Home Depot

tested Wright for drug use twice during the promotion review and

also conducted a background investigation.

A Consumer Report

revealed Wright’s prior conviction, and Home Depot notified Wright

in late November that it was considering taking adverse action that

could include not offering him the position, termination, or other

action.

Wright was terminated on December 17, 2002, “because of

his ‘felony conviction disposition 04-30-96 [sic], use of [a] controlled

substance, in violation of company policy.’”

Wright thereafter

received a right-to-sue notice from the Hawaii Civil Rights

Commission and filed a lawsuit alleging that his discharge was

wrongful and discriminatory.

His amended complaint noted that

his termination violated a state statute making it unlawful to

discriminate against any individual because of arrest and court

record or conviction.

Wright’s complaint also alleged that his 1996 conviction “for the

use of a controlled substance d[id] not bear a rational relationship to

the duties and responsibilities of the position he held at Defendant

HOME DEPOT.”

The defendant moved to dismiss, claiming that

its consideration of Wright’s criminal record was appropriate under

state law in that “it bore a rational relationship to his

employment.”

Home Depot claimed that the drug conviction had “a

18. Id.

19. Id.

20. Id.

21. Id.

22. Id.

23. Id. at 268 & n.4.

24. Id. at 268 (quoting H

AW. REV. STAT. § 378-2(1)(A) (1993)).

25. Wright, 142 P.3d at 269 (emphasis omitted).

26. Id. The statute in question, H

AW. REV. STAT. § 378-2.5 (Supp. 2006),

provides:

MPLOYER INQUIRIES INTO CONVICTION RECORD. (a) Subject to

subsection (b), an employer may inquire about and consider an

individual’s criminal conviction record concerning hiring, termination,

or the terms, conditions, or privileges of employment; provided that

the conviction record bears a rational relationship to the duties and

responsibilities of the position.

(b) Inquiry into and consideration of conviction records for prospective

employees shall take place only after the prospective employee has

received a conditional offer of employment which may be withdrawn if

the prospective employee has a conviction record that bears a rational

relationship to the duties and responsibilities of the position.

a court of competent jurisdiction that the defendant committed a

crime, not including final judgments required to be confidential

998 WAKE FOREST LAW REVIEW [Vol. 42

moderate, fair, or reasonable relation to employment at a home

improvement retailer with substantial concern for the safety of its

customers and employees, for its employee culture, for its goodwill

and reputation, and for its interest in maintaining an honest

environment.”

Wright argued that issues of fact remained because

he was rehabilitated, had tested clean with respect to drugs on three

occasions, and that he deserved to work in light of the

nondiscrimination law.

He also disputed the company policy that

the defendant relied on as its basis for termination.

In further

response to Home Depot’s motion to dismiss, Wright argued that

because his conviction record was not rationally related to his

position, to grant the defendant’s motion would make the statute

“meaningless.”

The state circuit court granted Home Depot’s

motion to dismiss, reasoning that there was a rational relationship

between the conviction and his job. Wright appealed.

The Supreme Court of Hawaii reviewed the appellate court’s

ruling de novo, looking at the allegations in the complaint and

construing them in the light most favorable to the plaintiff to

determine whether there was a way for him to prove a set of facts in

support of his claim that would entitle him to relief.

The court

noted that rules of statutory construction require it to interpret a

statute and its legislative intent in accordance with the language of

the statute itself, which is presumed to express the intent of the

legislature.

Because Section 328-2.5 referred to an employer’s

ability to consider an individual’s criminal conviction in the context

of “hiring, termination, or the terms, conditions, or privileges of

employment . . . provided that the record bears a rational

pursuant to section 571–84; provided that the period for which the

employer may examine the employee’s conviction record shall not

exceed the most recent ten years, excluding periods of incarceration.

Section 378-3(13), which was repealed on June 30, 1999 (prior to Wright’s

hiring in 2001 by Home Depot) provided: “Nothing in this part shall be deemed

to: (13) Prohibit or preclude an employer from considering a record of criminal

conviction that bears a rational relationship to the duties and responsibilities of

the position, pursuant to section 378-2.5, with regard to prospective or

continued employment.” Home Depot argued for the use of the “minimum

rationality test of the fourteenth amendment’s [sic] equal protection clause,” a

standard providing the “widest discretion” to the employer. Wright, 142 P.3d at

269.

27. Wright, 142 P.3d at 269.

28. Id.

29. Id. at 269–70.

30. Id. at 270.

31. Id.

32. Id.

33. Id. at 271, 273.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 999

relationship to the duties and responsibilities of the position,” the

court found that the language permitted an employer to consider a

conviction record at times other than at hiring.

To limit the time

for consideration to the time of hiring would have made the other

words superfluous, violating a cardinal rule of statutory

construction.

In addition, the court noted that the consideration of

the conviction record was not limited to convictions that occurred

during the individual’s employment with the employer.

Despite a

stray remark by one senator to the contrary, the court found that

the express terms of the statute permit consideration of current

employees’ convictions, as well as those of prospective employees.

The court in Wright noted that the relationship between the

conviction and the employment must be rational in accordance with

the plain meaning of the phrase in order for an employer to refuse to

hire a prospective employee or terminate a current employee.

The

court remanded the case, giving Wright an opportunity to prove that

his prior conviction was not rationally related to his present duties

and responsibilities at Home Depot.

Significantly, the court stated

that the standard is not “the rational relationship or rational basis

test as applied in the context of constitutional equal protection

analysis” because Wright’s claim was based upon a violation of a

statute, and, although the statute did not define the phrase, the

ordinary meaning of the terms would apply.

Thus, the court

specifically rejected the minimum rationality test that Home Depot

sought to have applied.

The statutory language was not limited to

consideration of conviction prior to employment, and thus

consideration of a current employee’s prior conviction is permitted

under the statute if the conviction occurred within the preceding ten

34. Id. at 274.

35. Id.

36. Id.

37. Id. at 275.

38. Id. at 275–76.

39. Id. at 276.

40. Id. at 276 n.9 (referring to H

AW. REV. STAT. § 378-2 (1993 & Supp.

2006)). When a government classification discriminates on any basis not

involving a suspect class or fundamental right, that classification will survive

Equal Protection Clause scrutiny as long as there is “any reasonably

conceivable state of facts that could provide a rational basis for the

classification.” Fed. Commc’ns Comm’n v. Beach Commc’ns, Inc., 508 U.S. 307,

313 (1993). The rational basis test thus sets a low bar, and, as a result, most

government classifications not involving suspect classes or fundamental rights

are upheld as constitutional. Ex-convicts are not considered a suspect class.

Geiger, supra note 2, at 1191–92.

41. Wright, 142 P.3d at 276 n.9.

1000 WAKE FOREST LAW REVIEW [Vol. 42

years.

The Hawaii statute was enacted to protect persons with

conviction records by increasing their right to privacy and

opportunities for employment.

The law permits employers to

inquire into conviction records if there is a rational relationship to

the job.

Whether the rational relationship standard amounts to a

business necessity as that standard pertains under federal law is an

important question, one that the Hawaii Supreme Court did not

squarely answer.

However, a report to the 2003 legislature by a

working group within the Hawaii Criminal Justice Data Center and

Attorney General’s office interpreted the “rational relationship”

standard in the following way:

The Hawaii Civil Rights Commission (HCRC) investigates

complaints of employment discrimination arising from an

employer’s hiring decision based on the rational relationship of

an applicant’s conviction to the job. In investigations of such

complaints, an employer is required to show a rational

relationship between the conviction and the duties and

responsibilities of the position. Although no administrative

rules or guidelines have been adopted by the HCRC to set

forth when a conviction is “rationally related” to the job, the

rational relationship standard is not a difficult one to satisfy,

requiring only a showing of an understandable or rational

connection between the offense and how it may affect an

individual’s ability to perform the job duties and functions.

Almost any conceivable relationship between the offense and

the job will likely satisfy the rational relationship standard.

The HCRC enforcement section has determined that records of

conviction for crimes of violence or dishonesty meet the

rational relationship standard for a broad range of jobs.

The legislative history surrounding the enactment of HRS

§ 378-2.5 provides ample grounds for applying this standard

most expansively to enable employers to protect their

businesses, customers and employees. [One proponent of the

legislation stated that] the “rational relationship” between the

job and the conviction is the lowest standard you can look at.

We took that standard because “rational” is a lot lower than

“substantial.” “Rational” is a lot lower than “reasonable.”

42. See Sheri-Ann S.L. Lau, Recent Development, Employment

Discrimination Because of One’s Arrest and Court Record in Hawai‘i, 22 U.

AW. L. REV. 709, 715 & n.36 (2000).

43. Id. at 735.

44. Id. at 710–11.

45. Wright, 142 P.3d at 275, 276 & n.9.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1001

“Rational” is a very, very low and fair relationship to

establish.

If the trial court follows the HCRC’s interpretation of “rational

relationship,” Wright would probably not be able to succeed in

proving that Home Depot acted unlawfully when it terminated him

because of his prior conviction, simply because this standard is low,

and thus, adverse employment actions on such grounds will be

upheld unless clearly irrational. The standard appears to favor

employer discretion if the offense has a rational connection to or

might affect the employee’s ability to perform the job. One wonders

if the Working Group, in quoting proponents of the amendment to

the statute, sought to reassure employers within the state that they

would not be handicapped by the legislation. The HCRC’s

interpretation of the standard falls below a standard of business

necessity.

In addition, Home Depot maintained that it had a

relevant employment policy that resulted in Wright’s discharge

when the prior conviction was discovered.

It should be noted that

the existence of an employment policy, in and of itself, may not

excuse an employer from violating antidiscrimination legislation.

However, if the employment policy does not directly contradict the

statute, it would seem to create a business justification or legitimate

business reason for the adverse employment action.

Other variables from the facts of the case should weigh in

Wright’s favor, including the considerable length of time that

elapsed between the pre-hire conviction and the time of termination,

the fact that Wright was being considered for a promotion as the

event triggering the background investigation that should have been

performed prior to hire, the fact that his conviction related to

substance abuse rather than violence or dishonesty, and his drug-

free status during the relevant period of time.

Since Hawaii is not the only state that has enacted legislation

limiting the ability of employers to engage in adverse employment

decisions based on a prior criminal conviction, it seems instructive

to compare the language of other state laws to Hawaii’s “rational

relationship” standard.

Hawaii’s “rational relationship” language

46. HAWAII CRIMINAL JUSTICE DATA CENTER, DEPARTMENT OF THE ATTORNEY

GENERAL, CRIMINAL HISTORY RECORD CHECKS REPORT TO THE 2003 LEGISLATURE

4–5 (2002) (emphasis added).

47. See id.

48. Wright, 142 P.3d at 268.

49. See id.

50. Nine states prohibit discrimination on the basis of an arrest record that

did not lead to a conviction. See Debbie A. Mukamel & Paul N. Samuels,

Statutory Limitations on Civil Rights of People with Criminal Records, 30

ORDHAM URB. L.J. 1501, 1504 (2003). Kansas protects employers from liability

1002 WAKE FOREST LAW REVIEW [Vol. 42

does not appear to be as difficult for employers to meet as the

“substantial relationship” in Wisconsin’s statute or the “direct

relationship exclusion” or “unreasonable risk” tests mentioned in

New York’s statute.

As one commentator noted, Hawaii may be

influenced by judicial interpretation of New York’s or even

Minnesota’s statutes.

B. Wisconsin: “Substantial Relation” Test

Wisconsin passed comprehensive legislation barring

employment discrimination by employers based on arrest or

conviction record,

as well as twelve other grounds including age,

race, and disability.

Unlike other states which have banned such

discrimination by public employers only, Wisconsin’s legislation

extends to private employers as well as “labor organization[s],

employment agenc[ies], licensing agenc[ies] or other person[s].”

Circumscribing adverse employment actions is not without limit,

however, and employees or prospective employees whose arrest or

conviction records “substantially relate to the circumstances of the

particular job” may find themselves at a disadvantage when seeking

to secure or maintain employment.

for employment decisions “based upon knowledge of . . . criminal history record

information, provided the information . . . reasonably bears upon

the . . . applicant’s or employee’s trustworthiness, or the safety or well-being of

the employer’s employees or customers.” K

AN. STAT. ANN. § 22-4710(f) (2006).

51. See infra Parts III.B, III.D. But see Lau, supra note 42, at 728

(concluding that the New York standard of direct relationship also implies a low

standard like that in Hawaii).

52. See Lau, supra note 42, at 728–29 (noting that New York refers to eight

factors that employers should weigh regarding an applicant’s conviction record

when using the direct relationship exclusion, and also that New York courts

consider rehabilitation).

53. W

IS. STAT. § 111.321 (2003) (“Subject to ss. 111.33 to 111.36, no

employer . . . may engage in any act of employment discrimination as specified

in s. 111.322 against any individual on the basis of . . . arrest record, [or]

conviction record . . . .”).

54. See id.; Gerlach, supra note 7, at 986.

55. § 111.321 (including among protected characteristics “age, race, creed,

color, disability, marital status, sex, national origin, ancestry, arrest record,

conviction record, membership in the national guard, state defense force” and

even the “use or nonuse of lawful products off the employer’s premises during

nonworking hours”).

56. W

IS. STAT. § 111.335(1)(b)–(c) (2003) (“Notwithstanding s. 111.322, it is

not employment discrimination because of arrest record to refuse to employ . . .

or to suspend from employment . . . , any individual who is subject to a pending

criminal charge if the circumstances of the charge substantially relate to the

circumstances of the particular job . . . . Notwithstanding s. 111.322, it is not

employment discrimination because of conviction record to refuse to employ . . .

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1003

1. Pre-Hire Felony Drug Conviction Is Not “Substantially

Related” to Non-Dangerous Employment

In Wal-Mart Stores, Inc. v. Labor & Industry Review

Commission, the Court of Appeals of Wisconsin relied on this

legislation in ordering the reinstatement of an employee who had

been fired from Wal-Mart.

Before being hired, the employee had

been charged but not yet convicted of three felony drug counts

related to the seizure of one thousand grams of marijuana on her

property.

When Wal-Mart learned of these charges four months

after her hire, it suspended the employee.

Three months after the

suspension, the employee pled guilty to misdemeanor possession of

marijuana, shortly after which she was fired retroactive to the date

of her suspension.

Because Wal-Mart stipulated that the suspension and discharge

were based on the arrest and conviction, the only issue for the court

to resolve was whether the arrest and conviction were “substantially

relate[d] to the circumstances” of her job.

The court concluded that

there was no substantial relationship.

Although the employee

sometimes worked in proximity to dangerous conditions, she did not

work with dangerous tools or perform dangerous tasks.

The court

agreed with the reasoning of the Labor and Industry Review

Commission (“LIRC”):

“To find [a substantial relationship in this

case] would be to conclude that individuals with drug-related arrests

or conviction records can be legally barred from employment in

virtually any industry, warehouse, or agricultural setting . . . .”

Given the goal of the statute of “assuring equal employment

opportunities for all persons by eliminating certain discriminatory

practices,”

such a result would be absurd and contrary to the public

policy favoring rehabilitation of people who have been arrested or

, or to . . . terminate from employment . . . , any individual who: (1) Has been

convicted of any felony, misdemeanor or other offense the circumstances of

which substantially relate to the circumstances of the particular job . . . .”).

57. No. 97–2690, 1998 WL 286332 (Wis. Ct. App. June 4, 1998).

58. Id. at *1.

59. Id.

60. Id.

61. Id. at *1–2.

62. Id. at *3.

63. Id. at *1–2.

64. Id. at *1, *3. The LIRC is the body charged with administering the

Wisconsin legislation. See Labor & Indus. Review Comm’n, LIRC’s Program

Responsibilities, http://www.dwd.state.wi.us/lirc/lrc_about.htm#Program (last

visited Oct. 2, 2007).

65. Wal-Mart, 1998 WL 286332, at *2.

66. Byers v. Labor & Indus. Review Comm’n, 561 N.W.2d 678, 681 (Wis.

1997).

1004 WAKE FOREST LAW REVIEW [Vol. 42

convicted of crimes.

Wal-Mart argued that forcing the company to

employ an individual who pled guilty to a drug violation during her

employment ran counter to its “zero-tolerance” drug policy.

However, the court pointed out that nothing in the Wisconsin Act

prohibits the discharge of an employee for violation of an employer’s

drug use policies during the period of employment.

Here, however,

there was no evidence of drug use during the period of

employment.

2. Isolated Eight-Year-Old Conviction for Conduct Recklessly

(But Unintentionally) Causing Harm to Child Was Not

“Substantially Related” to Position of School Boiler Room

Attendant

Another decision favoring the employee can be found in

Milwaukee Board of School Directors v. Labor & Industry Review

Commission.

In 1988, Mark Moore was involved in an argument

with his girlfriend, in which he threw a pan of hot grease at her.

Although it missed his girlfriend, it hit her twenty-month-old

daughter, causing injury that required extensive surgery and skin

grafts.

He was convicted of “injury by conduct regardless of life.”

Shortly thereafter, Moore was hired as a Boiler Room Attendant

Trainee in the Milwaukee Public Schools (“MPS”) system.

During

his term of employment, the school discovered his criminal

conviction, which had not been disclosed on his application, and it

67. See County of Milwaukee v. Labor & Indus. Review Comm’n, 407

N.W.2d 908, 914–15 (Wis. 1987) (“On the one hand, society has an interest in

rehabilitating one who has been convicted of crime and protecting him or her

from being discriminated against in the area of employment. Employment is an

integral part of the rehabilitation process.”). The court in Milwaukee v. LIRC

also did not neglect to mention the countervailing interest:

On the other hand, society has an interest in protecting its citizens.

There is a concern that individuals, and the community at large, not

bear an unreasonable risk that a convicted person, being placed in an

employment situation offering temptations or opportunities for

criminal activity similar to those present in the crimes for which he

had been previously convicted, will commit another similar crime.

This concern is legitimate since it is necessarily based on the well-

documented phenomenon of recidivism.

Id. at 915.

68. Wal-Mart, 1998 WL 286332, at *3.

69. Id.

70. Id.

71. No. 00-1956, 2001 WL 641791 (Wis. Ct. App. June 12, 2001).

72. Id. at *1.

73. Id.

74. Id.

75. Id.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1005

fired him for failure to disclose.

This discharge was not at issue in

the case. However, eight years after the conviction, Moore reapplied

for the Boiler Room Attendant position, this time disclosing the

conviction.

His application was rejected “[b]ased on the violent

nature of [the] conviction and the fact that [the] victim of [the]

offense was a small child, the nature of the position for which [he]

applied, and the nature of [the school’s] business (public

education).”

The Wisconsin Court of Appeals upheld the

determination of the LIRC that the school board unlawfully

discriminated against Moore because the conviction did not

substantially relate to the position of Boiler Room Attendant.

Although the court found that Moore would have sporadic contact

with children, it found that “such sporadic contact was ‘not a

circumstance shown to foster criminal conduct on his part.’”

The court and the LIRC may have been influenced by the length

of time that had elapsed since the events giving rise to the

conviction—at least eight years. Moreover, one could reasonably

infer from the facts that Moore’s conduct may have arisen at home

in the heat of passion. Absent other evidence of a propensity for

violence, the likelihood that Moore would be aroused to such a

passionate outburst at work seems remote. One can certainly

sympathize with the concern of the school board (not to mention

students’ parents) for the safety of the students. However, the

Wisconsin statute mandates a balancing of interests: rehabilitation

on the one side, and protecting citizens (including children) on the

other.

It does not mandate elevating the safety of citizens (even

that of children) to the status of an imperative that must be

achieved at all costs. Moreover, the proper analysis involves a

comparison of the risk that the person with the criminal conviction

poses in a particular job to the risk that he would be likely to pose

without that job. Declining to hire someone with a criminal record

does not eliminate the risk that that person poses to society; rather,

it merely shifts the risk elsewhere.

C. Pennsylvania: “Relates To” Test

Under Pennsylvania’s Criminal History Record Information Act,

employers may consider “criminal history record information,”

including felony and misdemeanor conviction records, only to the

76. Id.

77. Id. at *1–2.

78. Id. at *2.

79. Id. at *8.

80. Id. at *7 (quoting the LIRC’s written decision).

81. Id. at *6.

1006 WAKE FOREST LAW REVIEW [Vol. 42

extent that it “relate[s] to” the applicant’s suitability for the

particular position in question.

However, employers may not

consider a prior arrest in making the hiring decision.

Employees should be aware of several significant caveats. First,

plaintiffs will be unable to rely on the statute’s protections if they

voluntarily provide information in the employment application.

Information provided voluntarily is simply not included in the

definition of “criminal history record information.”

Thus, in

Foxworth v. Pennsylvania State Police, twenty-six-year-old Roderick

Foxworth was denied employment with the Pennsylvania State

Police after candidly providing information about a theft he

committed when he was eighteen.

Although his criminal record

had been expunged under a program for first-time offenders, the

court held that he was not entitled to relief because the adverse

employment action was based on the underlying criminal conduct,

and not on his criminal record per se.

While the state police may

82. 18 PA. CONS. STAT. ANN. § 9125 (West 2000) (“(a) . . . Whenever an

employer is in receipt of information which is part of an employment applicant’s

criminal history record information file, it may use that information for the

purpose of deciding whether or not to hire the applicant, only in accordance

with this section. (b) . . .

Felony and misdemeanor convictions may be

considered by the employer only to the extent to which they relate to the

applicant’s suitability for employment in the position for which he has applied.

The employer shall notify in writing the applicant if the decision not to

hire the applicant is based in whole or in part on criminal history record

information.”).

83. See id. § 9124(b)(1) (stating that “[r]ecords of arrest if there is no

conviction” may not be considered by state licensing agencies in determining

eligibility for a license, certificate, registration, or permit); Foxworth v. Pa.

State Police, 402 F. Supp. 2d 523, 545 n.21 (E.D. Pa. 2005) (“[U]nder section

9125, employers may consider only a prior conviction and not a prior arrest.”);

Pokalsky v. Se. Pa. Transp. Auth., No. Civ. 02-323, 2002 WL 1998175, at *5

(E.D. Pa. Aug. 28, 2002) (“[I]t is well established that employers may consider

only a prior conviction and not a prior arrest.”); Tilson v. Sch. Dist. of Phila.,

Civ. A. No. 89-1923, 1990 WL 98932, at *4 (E.D. Pa. July 13, 1990)

(“Pennsylvania law now permits consideration of job-related convictions only.

Employers were formerly allowed to consider arrest records of prospective

employees, but the word ‘arrest’ was removed by statutory amendment in 1979 .

. . .”) (citations omitted); cf. 18 P

A. CONS. STAT. ANN. § 9121(b)(2) (West 2000)

(“Before a . . . police department disseminates criminal history record

information to an individual or noncriminal justice agency, it shall extract from

the record all notations of arrests . . . where: (i) three years have elapsed from

the date of arrest; (ii) no conviction has occurred; and (iii) no proceedings are

pending seeking a conviction.”).

84. Foxworth v. Pa. State Police, No. Civ. A. 03CV6795, 2005 WL 3470601,

at *2 (E.D. Pa. Dec. 19, 2005).

85. Foxworth, 402 F. Supp. 2d at 527–28.

86. Id. at 545 n.21.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1007

have legitimate reasons for declining to hire those with criminal

histories, the Foxworth decision suggests that if Foxworth had not

been truthful on his application, he might well have been hired for

the position. This case sends the message to those with expunged

criminal histories that honesty may be an impediment to

employment, a perverse message to be sending to those whom

society seeks to rehabilitate.

Second, despite the language of the statute specifically stating

that the Criminal History Record Information Act “appl[ies] . . . to

any agency of the Commonwealth or its political subdivisions which

collects, maintains, disseminates or receives criminal history record

information,”

at least one court has held that the Commonwealth

of Pennsylvania may nevertheless raise the defense of sovereign

immunity.

In Poliskiewicz v. East Stroudsburg University, a police

officer of East Stroudsburg University was discharged after being

involved in a bar incident.

Although the charges for disorderly

conduct and public drunkenness were dismissed, the University

declined to reinstate the officer.

However, the complaint was

dismissed based not on the relation between the conduct and the

position, but on grounds of sovereign immunity.

Thus, the

Commonwealth may apparently avoid the restrictions of the statute

at its whim by simply claiming sovereign immunity.

Third, even where the conviction is decades-old, the statute may

not protect the applicant. In El v. Southeastern Pennsylvania

Transportation Authority, a paratransit driver-trainee was

terminated solely on the basis of a forty-year-old conviction for his

role in a gang-related homicide.

In denying the plaintiff’s claims

and holding that the plaintiff’s record was related to the position in

question,

the court noted that significant evidence had been

proffered “of the greatly increased risk that former convicts will

again engage in criminal conduct.”

This decision was upheld on

87. 18 PA. CONS. STAT. ANN. § 9103 (West 2000).

88. McNichols v. Dep’t of Transp., 804 A.2d 1264, 1267 (Pa. Commw. Ct.

2002) (“Wrongful discharge . . . is not one of the enumerated exceptions [to

sovereign immunity].”); Poliskiewicz v. E. Stroudsburg Univ., 536 A.2d 472, 475

(Pa. Commw. Ct. 1988) (holding that sovereign immunity remains in effect

unless it has been specifically waived).

89. 536 A.2d at 473.

90. Id.

91. Id.

92. 418 F. Supp. 2d 659, 663–64 (E.D. Pa. 2005), aff'd, 479 F.3d 232 (3d

Cir. 2007).

93. Id. at 670.

94. Id. at 674. Expert testimony offered by the employer included

statements that

former prisoners are much more likely to engage in criminal conduct

1008 WAKE FOREST LAW REVIEW [Vol. 42

appeal. In affirming, the Third Circuit expressed concern regarding

the employer’s policy of denying employment to any person with a

“record of any felony or misdemeanor conviction for any crime of

moral turpitude or of violence,” regardless of how remote the

conviction.

It noted that the employer’s expert witnesses, who

averred that those with a history of violent crime are more likely to

commit a future violent act than those without such a history, relied

heavily on data from the Department of Justice indicating

“relatively high” recidivism rates for the three-year period after

prisoners were released from prison.

The court questioned the

relevance of these statistics to El, for whom there was no record of

violence since his conviction forty years earlier.

Moreover, the

court was distressed by the employer’s complete inability to explain

how it had developed the specific exclusionary provisions of its

policy, despite depositions of eight employees including the drafter

of the policy himself.

Nevertheless, the court held that there was

no genuine issue of material fact preventing the grant of the

employer’s summary judgment motion because El had failed to

produce any evidence that would rebut the expert witnesses’

claims.

Fourth, the statute provides protection only during the hiring

stage and is not applicable to ongoing or post-employment adverse

employment actions.

100

This limited coverage may account for the

(subsequent to release) than the “typical” adult in the general

population . . . . [R]eleased prisoners are approximately 31 times

more likely to engage in homicide, 5–6 times more likely to engage in

rape, and 10–11 times more likely to engage in assault than a

randomly selected adult from the general population . . . .

Id. at 670.

95. El v. Se. Pa. Transp. Auth., 479 F.3d 232, 235, 236 (3d Cir. 2007) (“[W]e

have reservations about such a policy in the abstract . . . .”).

96. Id. at 246.

97. Id. (“Indeed, those data show relatively high rates of recidivism in those

first three years. But what about someone who has been released from prison

and violence-free for 40 years?”).

98. Id. at 247–48 (“If the policy were developed with anything approaching

the level of care that Griggs, Albemarle, and Dothard seem to contemplate, then

we would expect that someone [in the Department] would be able to explain

how it decided which crimes to place into each category, how the seven-year

number was selected, and why [the employer] thought a lifetime ban was

appropriate for a crime like simple assault.”).

99. Id. at 235.

100. 18 P

A. CONS. STAT. ANN. § 9125 (West 2000); see also Commonwealth v.

D.M., 695 A.2d 770, 773 n.2 (Pa. 1997) (“[Section] 9125 forbids any employer

from denying employment on the basis of an arrest not resulting in

conviction.”).

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1009

small number of cases decided under the Pennsylvania law.

101

applicants volunteer criminal history information, they are not

protected by the statute, as noted above. If applicants do not

volunteer the information at the time of hire, and this information is

discovered post-hire and used as a basis for termination, the

statute’s protections do not apply because the adverse employment

action is not being made at the time of hire. The only time the law

protects applicants is when the applicant does not disclose the

information voluntarily, but the employer nevertheless discovers the

criminal history through a record check or other means. Assuming

that the employer asked for full disclosure of criminal history and

the employee purposely omitted this information from the

application, the employer would then have an independent reason

for declining to hire the applicant: application fraud.

102

The

Pennsylvania legislation clearly favors employers.

D. New York: “Direct Relationship” Test

New York enacted legislation which, like Pennsylvania’s,

protects applicants only at the time of hire.

103

This legislation lists

eight factors that employers are to consider when making an

employment determination.

104

Under the New York statute, “[n]o

101. Another possibility that has been proffered to explain the “paucity of

actions under this law” is the “lack of a statutory attorneys’ fee” provision.

Sharon Dietrich et al., Work Reform: The Other Side of Welfare Reform, 9 S

TAN.

L. & POL’Y REV. 53, 67 n.49 (1998).

102. See 18 P

A. CONS. STAT. ANN. § 9125 (West 2000).

103. N.Y. CORRECT. LAW § 752 (McKinney 2003) (amended in 2007) (“No

application for . . . employment . . . shall be denied or acted upon adversely by

reason of the individual's having been previously convicted of one or more

criminal offenses, or by reason of a finding of lack of ‘good moral character’

when such finding is based upon the fact that the individual has previously

been convicted of one or more criminal offenses, unless: (1) there is a direct

relationship between one or more of the previous criminal offenses and the

specific . . . employment sought or held by the individual; or (2) . . . the granting

or continuation of the employment would involve an unreasonable risk to

property or to the safety or welfare of specific individuals or the general

public.”). Note, however, that New York courts have discussed Section 752 in

the context of other adverse employment decisions, such as failure to promote.

E.g., Alston v. City of New York, 703 N.Y.S.2d 186, 187 (App. Div. 2000) (noting

in dicta that the plaintiff’s “mail fraud conviction, which involved [plaintiff’s]

submission of false car service vouchers in connection with his employment as a

caseworker, raises legitimate issues about his fitness for the supervisory

position [in human resources administration]”).

104. N.Y.

CORRECT. LAW § 753(1) (“In making a determination pursuant to

section seven hundred fifty-two of this chapter, the public agency or private

employer shall consider the following factors: (a) The public policy of this state,

as expressed in this act, to encourage the licensure and employment of persons

1010 WAKE FOREST LAW REVIEW [Vol. 42

application for . . . employment . . . shall be denied or acted upon

adversely by reason of the individual's having been previously

convicted[, unless] there is a direct relationship between one or more

of the previous criminal offenses and the specific . . . employment

sought.”

105

In City of New York v. New York City Civil Service

Commission, the Appellate Division declined to reverse a

reinstatement determination, where the employee to be reinstated

as a watershed maintainer had a record of two felony convictions for

attempted robbery and sexual abuse, and two misdemeanor

convictions for criminal possession of a weapon and theft of

transportation services.

106

The court noted that reference letters had

been submitted on the employee’s behalf “attesting to his work

ability and that he is a responsible and hard working employee” and

that a period of his employment had been “without disciplinary

problems.”

107

Because the work was to be performed under

supervision and did not involve dealing with the public, multiple

felony and misdemeanor convictions did not directly relate to the

employment.

108

Where the employer is a public agency, the statute

in a sense creates a safe harbor in that, when the agency considers

all eight factors, the court will not reweigh the factors and the

agency’s employment decision will stand.

109

Considering the myriad combinations of different types of felony

and misdemeanor convictions, and the equally variable job

requirements of the positions for which ex-offenders could

conceivably apply, one quickly realizes that application of the “direct

relationship” test will be a fact-specific inquiry, the answer to which

may not always be readily apparent. On the other hand, certain

conviction/position combinations make for facile resolution. In Rosa

previously convicted of one or more criminal offenses. (b) The specific duties and

responsibilities necessarily related to the license or employment sought or held

by the person. (c) The bearing, if any, the criminal offense or offenses for which

the person was previously convicted will have on his fitness or ability to

perform one or more such duties or responsibilities. (d) The time which has

elapsed since the occurrence of the criminal offense or offenses. (e) The age of

the person at the time of occurrence of the criminal offense or offenses. (f) The

seriousness of the offense or offenses. (g) Any information produced by the

person, or produced on his behalf, in regard to his rehabilitation and good

conduct. (h) The legitimate interest of the public agency or private employer in

protecting property, and the safety and welfare of specific individuals or the

general public.”).

105. Id. § 752.

106. 817 N.Y.S.2d 254, 255 (App. Div. 2006).

107. Id.

108. Id. at 256.

109. Gallo v. Office of Mental Retardation & Developmental Disabilities, 830

N.Y.S.2d 796, 797 (App. Div. 2007).

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1011

v. City University of New York, a professor of business law and

business ethics was discharged after he was convicted of stealing

money from a client.

110

Although the professor’s claim was

dismissed as untimely, the court noted that in any event a “direct

relationship” existed between the criminal offense (involving

unethical behavior) and the teaching of ethics, preventing a claim

under the New York antidiscrimination law.

111

E. California, Connecticut, the District of Columbia, Louisiana,

Minnesota, Maine, and Massachusetts

More limited legislation has been enacted in California (limiting

the ability of most employers to request that job applicants disclose

arrest records that did not result in conviction),

112

Connecticut

(applying discrimination prohibition to state employers,

113

but

exempting law enforcement agencies),

114

Washington, D.C.

(restricting the ability of employers to pass along the cost of

background checks to applicants),

115

Illinois (limiting the ability of

employers to make adverse employment decisions based on criminal

records that have been expunged or sealed),

116

Louisiana (protecting

110. 789 N.Y.S.2d 4, 5 (App. Div. 2004).

111. Id. at 5–6.

112. C

AL. LAB. CODE § 432.7(a) (Deering 2006) (“No employer, whether . . .

public . . . or private . . . shall ask an applicant . . . to disclose . . . information

concerning an arrest or detention that did not result in conviction, . . . nor shall

any employer . . . utilize, as a factor in determining any condition of

employment including hiring, promotion, [or] termination . . . any record of

arrest or detention that did not result in conviction . . . .”).

113. C

ONN. GEN. STAT. § 46a-80 (2007) (“(a) Except as provided in subsection

(b) of this section and subsection (b) of section 46a–81, . . . a person shall not be

disqualified from employment by the state of Connecticut . . . solely because of a

prior conviction of a crime. (b) A person may be denied employment by the state

. . . by reason of the prior conviction . . . if after considering (1) the nature of the

crime and its relationship to the job . . . ; (2) . . . the degree of rehabilitation . . . ;

and (3) the time elapsed since the conviction . . . , the state . . . determines that

the applicant is not suitable for the position of employment sought . . . .”).

114. C

ONN. GEN. STAT. § 46a-81(b) (2007) (“[Section 46a-80] shall not be

applicable to any law enforcement agency . . . .”).

115. D.C.

CODE § 2-1402.66 (2001) (“It shall be an unlawful practice . . . for

any person to require the production of any arrest record . . . at the monetary

expense of any individual to whom such record may relate. Such ‘arrest records’

shall contain only listings of convictions and forfeitures of collateral that have

occurred within 10 years of the time at which such record is requested.”).

116. 775 I

LL. COMP. STAT. 5/2-103 (2006) (“(A) Unless otherwise authorized

by law, it is a civil rights violation for any employer . . . to inquire into or to use

the fact of an arrest or criminal history record information ordered expunged,

sealed or impounded . . . as a basis to refuse to hire . . . [or as a basis to]

discharge . . . . This Section does not prohibit a State agency, unit of local

government or school district, or private organization from requesting or

1012 WAKE FOREST LAW REVIEW [Vol. 42

applicants from employment discrimination in occupations requiring

a state license),

117

and Minnesota (restricting the ability of public

employers from using prior conviction records to disqualify

applicants from employment).

118

Minnesota specifically provides

that, even where the conviction relates to the employment sought,

the applicant may show evidence of rehabilitation so as to come

within the protection of the statute.

119

Maine preserves the ability of

employers to take adverse employment action based upon drug

convictions, if the employer has established rules to this effect.

120

Massachusetts restricts employer inquiries concerning arrests

without convictions, convictions for misdemeanors that are minor,

utilizing sealed felony conviction information obtained from the Department of

State Police . . . or under other State or federal laws or regulations that require

criminal background checks in evaluating the qualifications and character of an

employee or a prospective employee. (B) The prohibition against the use of the

fact of an arrest contained in this Section shall not be construed to prohibit an

employer . . . from obtaining or using other information which indicates that a

person actually engaged in the conduct for which he or she was arrested.”).

117. L

A. REV. STAT. ANN. § 37:2950 (2007) (“A. [A] person shall not be . . .

held ineligible to . . . engage in any . . . occupation . . . for which a license . . . is

required to be issued by the state of Louisiana . . . solely because of a prior

criminal record, except in cases in which the applicant has been convicted of a

felony, and such conviction directly relates to the position of employment sought

. . . . D. (1)(a) This Section shall not be applicable to: (i) Any law enforcement

agency. . . . (ix) The Louisiana State Bar Association. . . . (xiv) The Louisiana

State Board of Elementary and Secondary Education. (b) Nothing herein shall

be construed to preclude the agency, in its discretion, from adopting the policy

set forth in this Section. (2) This Section shall not be applicable to the office of

alcohol and tobacco control of the Department of Revenue.”).

118. M

INN. STAT. § 364.03 (2006) (“Notwithstanding any other provision of

law to the contrary, no person shall be disqualified from public employment . . .

solely or in part because of a prior conviction of a crime . . . , unless the crime . .

. for which convicted directly relate[s] to the position of employment sought . . . .

In determining if a conviction directly relates to the position . . . , the hiring . . .

authority shall consider: (a) The nature and seriousness of the crime . . . ; (b)

The relationship of the crime or crimes to the purposes of regulating the

position of public employment sought . . . ; (c) The relationship of the crime or

crimes to the ability . . . required to perform the duties . . . of the position . . . .”).

119. Id. (“A person who has been convicted of a crime . . . which directly

relate[s] to the public employment sought . . . shall not be disqualified from the

employment . . . if the person can show competent evidence of sufficient

rehabilitation . . . .”).

120. M

E. REV. STAT. ANN. tit. 26, § 681(7) (2007) (“This subchapter does not

prevent an employer from establishing rules related to the possession or use of

substances of abuse by employees, including convictions for drug-related

offenses, and taking action based upon a violation of any of those rules, except

when a substance abuse test is required, requested or suggested by the

employer or used as the basis for any disciplinary action.”).

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1013

and convictions for any misdemeanor five or more years old.

121

F. The Impact of After-Acquired Evidence of Criminal Convictions

upon Remedies for Employment Discrimination—States Follow the

United States Supreme Court’s Rule in McKennon v. Nashville

Banner Publishing Co.

122

The discussion has, to this point, concerned adverse

employment actions motivated by the criminal history of an

employee or applicant. In some cases, however, an employer may

discharge or decline to hire a person for a reason that is not

permitted by law, and at the time of the adverse employment action,

be unaware of the person’s criminal history or other malfeasance,

such as falsification of company documents, that would have

provided an independent legitimate reason for the adverse

employment action. The employee or applicant may thereafter

allege that he has been discriminated against on the basis of a

protected characteristic, such as race or national origin, or because

of a criminal record which state law protects, or in violation of public

policy. If the employer later discovers—for example, during

discovery in a suit for race or national origin discrimination—that

the person has a criminal record which would have provided a

legitimate basis for the discharge, the employer may attempt to use

the after-acquired evidence of criminal conduct to justify the

employer’s actions. Following the Supreme Court’s rule in

McKennon v. Nashville Banner Publishing Co., state courts in

Wisconsin, Minnesota, and Oklahoma have held that such after-

acquired evidence of a legitimate basis for the employer’s action

cannot be used as a post-hoc justification to prevent liability for an

unlawful act.

123

Nevertheless, these courts have confirmed that such

evidence generally will affect the remedies available. The cases

discussed in Subsections 1–3 illustrate how state laws prohibiting

discrimination on the basis of a criminal record provide some

121. MASS. GEN. LAWS ch. 151B, § 4(9) (2006); see also Lau, supra note 42, at

725–26 (comparing the Massachusetts statute to that in Hawaii and noting that

both prohibit inquiries into arrests and place a time frame upon relevance of

prior convictions).

122. 513 U.S. 352 (1995).

123. Id. at 358 (“It would not accord with this scheme if after-acquired

evidence of wrongdoing that would have resulted in termination operates, in

every instance, to bar all relief for an earlier violation of the [Age

Discrimination in Employment] Act.”); see Meads v. Best Oil Co., 725 N.W.2d

538, 546 (Minn. Ct. App. 2006); Silver v. CPC-Sherwood Manor, Inc., 151 P.3d

127, 131 (Okla. 2006); McKnight v. Silver Spring Health & Rehab., ERD Case

No. 199903556 (Wis. Labor & Indus. Review Comm’n Feb. 5, 2002), available at

http://www.dwd.state.wi.us/lirc/erdecsns/459.htm.

1014 WAKE FOREST LAW REVIEW [Vol. 42

protection against improper motivation for an employment decision.

The cases caution, however, that reinstatement will not be

mandated where the employee would not have been hired or would

have been terminated anyway for an alternative lawful reason.

1. Wisconsin: Refusal to Hire on a Permanent Basis Because

of Record of Conviction Violates a State Statute, but False

Information on Application Affects the Remedy Based on the

After-Acquired Evidence Rule

A Wisconsin case, initially decided by an administrative law

judge and later appealed to the Labor and Industrial Relations

Commission, further illustrates the breadth of protection afforded by

the Wisconsin statute prohibiting discrimination based upon arrest

or conviction record.

124

McKnight is not a traditional after-acquired

evidence case because the employer did not discover the offense or

conviction after it made an adverse employment decision. Rather

the employer’s decision was in fact made based on the evidence of a

criminal record.

125

However, because the complainant, McKnight,

failed to disclose her offense at the time of application, she violated

company policy, and the employer’s later discovery of this

falsification of the application provided an independent non-

discriminatory basis for her discharge.

126

McKnight applied to work as a certified nursing assistant

(“CNA”) at Silver Spring Health and Rehabilitation Center.

127

She

was hired temporarily, but her background check revealed a number

of arrests for charges including retail theft, and a misdemeanor

conviction for recklessly endangering safety by use of a dangerous

weapon.

128

The complainant admitted that she and the father of her

child each had a knife in the midst of a domestic dispute, and that

she had been convicted of disorderly conduct—a non-criminal

conviction—and fined as a result.

129

The LIRC found that McKnight

was not terminated because of her arrest record, but rather she was

discriminated against because of her conviction record in violation of

the Wisconsin statute.

130

However, the evidence also showed that

McKnight falsified company documents by indicating that she did

not have a conviction.

131

Under the respondent’s disciplinary policy,

the employer would have terminated her employment anyway upon

124. McKnight, ERD Case No. 199903556.

125. Id. at *3.

126. Id. at *4.

127. Id. at *1.

128. Id. at *2.

129. Id. at *3–4.

130. Id. at *4.

131. Id. at *3–4.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1015

discovery of that fact.

132

In light of these findings of fact and

conclusions of law—in particular, that the respondent discriminated

against McKnight based on her noncriminal conviction—the LIRC

ruled that the complainant was entitled to backpay from the date of

termination until the date of the hearing when knowledge of her

falsification of documents would have resulted in her termination

anyway.

133

The LIRC specifically followed the after-acquired

evidence rule from McKennon when finding the employer liable for a

violation of the state statute against discrimination, but curtailed

the damages as of the date of discovery of the other evidence that

would have resulted in the complainant’s termination.

134

The LIRC

found that the evidence failed to establish that McKnight’s

disorderly conduct was “substantially related” to her position as a

CNA; thus, her offense would not have barred her from the job, yet

her failure to report the offense on required company forms did.

135

2. Minnesota: Conviction Discovered During Lawsuit Alleging

Discriminatory Failure to Hire

In another more typical case involving after-acquired evidence

of a criminal conviction, Meads v. Best Oil Co., an African-American

applicant for a cashier position at a convenience store filed a

complaint of race discrimination when he was denied employment in

favor of two Caucasian applicants.

136

The City of Duluth Human

Rights Office found probable cause that an unfair discriminatory

employment practice occurred and filed suit.

137

The court of appeals

reversed and remanded a summary judgment decision in favor of

the employer, finding that “a dispute of material fact [remained as

to] whether the employer’s refusal to hire was based on a legitimate,

nondiscriminatory reason or whether that reason was a pretext for

racial discrimination.”

138

Mead’s claim of employment discrimination survived the

employer’s after-acquired discovery that Mead had a twelve-year-old

conviction for aiding in a burglary.

139

The Minnesota Court of

Appeals noted that discovery of improperly withheld information on

a job application may limit remedies, but does not bar the claim

pursuant to the after-acquired evidence doctrine enunciated in

132. Id. at *4.

133. Id. at *5.

134. Id. at *11–12.

135. Id. at *4.

136. 725 N.W.2d 538, 540 (Minn. Ct. App. 2006).

137. Id. at 541.

138. Id. at 539 (syllabus).

139. Id. at 546.

1016 WAKE FOREST LAW REVIEW [Vol. 42

McKennon.

140

The court reasoned that the conviction was old and

that there was “no evidence of a clear and present impact on the

employee’s ability to do the work.”

141

In its discussion of the case,

the Minnesota court opined that, in addition to the twelve-year

period that had passed since the conviction, the appellant’s actual

role in aiding the burglary was not clear.

142

While an employer may

“establish reasonable rules regarding the criminal history of its

employees who handle money,” for example, that they be “bondable,”

state law encourages employers to provide job opportunities to those

with a criminal record as such opportunities are “essential to

rehabilitation . . . and the resumption of the responsibilities of

citizenship.”

143

The court noted that it generally construes the state

antidiscrimination law in accordance with federal law.

144

The court

specifically did not bar remedies such as backpay that would run

from the date of the unlawful discrimination until the date when the

after-acquired evidence was discovered, in the event of a finding of

liability for discrimination.

145

3. Oklahoma: Conviction Discovered After Termination

In a case involving alleged wrongful discharge in violation of

public policy, Silver v. CPC-Sherwood Manor, Inc., the Supreme

Court of Oklahoma held that after-acquired evidence of a prior

criminal conviction limits damages rather than bars liability.

146

The

discharged employee, Silver, alleged that he was wrongfully

terminated after he left work in the midst of his shift because he

was suffering from diarrhea and vomiting, and that this termination

violated State Department of Health rules.

147

The trial court

granted the defendant nursing home’s motion to dismiss, and Silver

appealed.

148

On the first appeal, the Supreme Court of Oklahoma

granted certiorari, found that Silver had a claim, and thus reversed

the trial court’s judgment.

149

On remand, the district court granted

140. Id. at 544–45 (discussing McKennon v. Nashville Banner Publ’g. Co.,

513 U.S. 352, 352 (1995)); see also supra notes 122–23 and accompanying text

(discussing McKennon).

141. Meads, 725 N.W.2d at 545.

142. Id. at 546.

143. Id. (citing Minnesota Criminal Rehabilitation Act, M

INN. STAT. § 364.01

(2004)).

144. Meads, 725 N.W.2d at 545–46.

145. Id. at 546.

146. 2006 OK 97, ¶ 1, 151 P.3d 127, 128 (Silver II).

147. Id. ¶ 3, 151 P.3d at 128.

148. Id., 151 P.3d at 128.

149. Id., 151 P.3d at 128. The earlier decision of the Oklahoma Supreme

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1017

summary judgment to the defendant and the court of civil appeals

affirmed, holding that Silver’s felony conviction for robbery and

aiding and abetting a murder (accessory before the fact), discovered

after his termination, was a complete bar to relief.

150

The Oklahoma Supreme Court again granted certiorari and

held that in an action for wrongful discharge in violation of public

policy, when an employee is not statutorily disqualified from

employment, the after-acquired evidence doctrine limits

compensatory damages but does not bar all recovery.

151

The court

noted that the employment application asked about criminal

convictions within the past ten years.

152

While Silver did not answer

this question, he could have truthfully responded “no” since his

conviction was more than ten years old at the time he applied to

work for the defendant.

153

The nursing home had a statutory duty to

complete a criminal arrest check, but the record did not reveal

whether they had done so after hiring Silver on a temporary basis.

If they had discovered his conviction, the nursing home would have

been obligated to discharge him.

154

The Oklahoma court remanded

the case for further proceedings to ascertain the relevant facts.

155

Once again, the employer’s after-acquired discovery of evidence

should bar Silver’s reinstatement and curtail backpay as of the date

of discovery.

4. Analysis of After-Acquired Evidence of Criminal

Convictions

The state courts’ treatment of after-acquired evidence of

criminal convictions in employment discrimination and wrongful

termination cases correctly follows the United States Supreme

Court’s decision in McKennon.

156

As the Minnesota court noted in

the Meads case, it is appropriate to look at the interpretation of

federal antidiscrimination legislation when interpreting parallel

state laws.

157

After-acquired evidence cannot belatedly create a

Court appears at Silver v. CPC-Sherwood Manor, Inc., 2004 OK 1, 84 P.3d 728

(Silver I).

150. Silver II, 2006 OK 97, ¶ 5, 151 P.3d at 129.

151. Id. ¶ 15, 151 P.3d at 131.

152. Id. ¶ 17, 151 P.3d at 131.

153. Id., 151 P.3d at 131.

154. Id., 151 P.3d at 131.

155. Id. ¶ 18, 151 P.3d at 132.

156. 513 U.S. 352 (1995). It should be noted that the McKennon case

involved after-acquired evidence of post-termination misconduct on the part of

the plaintiff, rather than after-acquired evidence of prior criminal convictions.

Id.

157. Meads, 725 N.W.2d 538, 545–46; see also Alex B. Long, “If the Train

1018 WAKE FOREST LAW REVIEW [Vol. 42

legitimate justification for a pre-existing adverse employment action

primarily because the employer was unaware of the evidence at the

time of its action.

158

Thus, the employer’s action could not have been

motivated by the later-discovered information. Nonetheless, where

an employer has engaged in unlawful discrimination, but later

uncovers evidence of an employee’s previous criminal conviction, the

evidence of conviction should be considered relevant to the remedy

where the employer proves by a preponderance of the evidence that

the plaintiff would have been terminated (or adversely affected)

anyway because of, and upon discovery of, the conviction.

159

It is

clear that at times it may be legally necessary to terminate an

employee because of after-acquired discovery of criminal convictions,

for example, where a statutory obligation exists. This may be due to

a legislatively perceived need to protect a vulnerable population,

such as nursing home residents, or other disabled or youth

populations.

160

State statutes regarding employer consideration of

arrest and conviction records will not protect applicants and

employees from compliance with other legislation.

161

Should Jump the Track . . .”: Divergent Interpretations of State and Federal

Employment Discrimination Statutes, 40 G

A. L. REV. 469, 556–57 (2006)

(recommending that state courts adopt a “canon of construction favoring

uniform construction of state and federal statutes employing identical or

substantially similar language”); supra notes 136–45 and accompanying text

(discussing Meads).

158. McKennon, 513 U.S. at 360.

159. See O’Day v. McDonnell Douglas Helicopter Co., 79 F.3d 756, 761 (9th

Cir. 1996) (outlining defendant’s burden of proving that it would have

terminated the plaintiff anyway upon discovery of the damaging after-acquired

evidence); see also Christine Neylon O’Brien, The Law of After-Acquired

Evidence in Employment Discrimination Cases: Clarification of the Employer’s

Burden, Remedial Guidance, and the Enigma of Post-Termination Misconduct,

65 UMKC L. R

EV. 159, 161 (1996) (discussing same).

160. See generally Elizabeth Redden, Criminals and Colleges in the Capital,

NSIDE HIGHER ED, Feb. 14, 2007, http://www.insidehighered.com/layout/set/

print/news/2007/02/14/dc. The article discusses the national trend toward

increased use of background checks in higher education when making personnel

decisions. It notes that the proposed Human Rights for Ex-Offenders

Amendment Act of 2007 being considered in the District of Columbia runs

counter to that trend as it would limit use of a person’s criminal background

regarding employment, housing, and enrollment decisions at ten higher

education institutions in D.C. The bill is co-sponsored by former Mayor Marion

Barry, who himself served time for drug charges. University leaders have

expressed concern about the bill as it reduces their flexibility in decision

making and may interfere with risk management. The article notes that law

enforcement, schools, and those employers offering care for children would be

exempt from the bill.

161. See generally Geiger, supra note 2 (arguing that ex-offenders should be

treated as a suspect class for equal protection purposes under statutes that

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1019

When one considers the potentially significant legal impact of

after-acquired evidence of employee misconduct, including criminal

convictions, upon a discrimination complaint, it once again raises

the overall public policy question of just what misconduct or

convictions should be considered relevant to employment decisions.

Should pre-hire misconduct resulting in a prior criminal conviction

come back to result in termination of an employee when he is

gainfully employed and performing well? In the ordinary course of

events, should the actual period of employment not be the most

critical time for assessing an employee’s performance and for

determining employment actions including discipline and discharge?

In many cases, prior convictions may be in the distant past and may

have only a tenuous connection to the employee’s ability to perform

the job. In all fairness, such evidence should not serve as the basis

for separation from employment absent strong public policy reasons

embodied by statute or an employee’s false response to a lawful

inquiry.

IV. A

NALYSIS OF THE CURRENT LEGAL ENVIRONMENT REGARDING

ANTIDISCRIMINATION STATUTES FOR EX-OFFENDERS AND

RECOMMENDATIONS

The state laws considered in this Article approach the issues

differently; some provide a higher standard of protection to ex-

offenders and apply in more situations than others. In addition, as

will be discussed in this Section, a number of major cities have

adopted ordinances to prevent employment discrimination against

ex-offenders, but these ordinances primarily address public sector

employees or contractors for those cities.

162

It should be noted that

federal laws also impact employers’ obligations to carefully evaluate

employment actions toward individuals who have been arrested or

convicted of criminal conduct, but again these federal laws are not

specifically targeted at protecting the population of ex-offenders.

163

In the current global economy, one wonders if the use of a

patchwork of state and local laws providing varying degrees of

protection is the best way to balance the interests of society, ex-

offenders, and employers, or whether federal legislation would be

preferable. An alternative to federal legislation could be a uniform

state law promulgated by the National Conference of Commissioners

on Uniform State Laws. Would such a uniform law gain nearly

universal acceptance like the Uniform Commercial Code? It may be

classify and disenfranchise them, including those statutes that impact

employment).

162. See infra Part IV.B.

163. See, e.g., 42 U.S.C. § 2000e-2 (2000).

1020 WAKE FOREST LAW REVIEW [Vol. 42

difficult to achieve widespread adoption among states that have

significant variations in their criminal laws and laws regarding

employer liability for negligent hiring and retention.

A. Advantages of State Laws

States, recognizing the large number of citizens with criminal

records and the importance of encouraging their rehabilitation and

reintegration into society, have begun to address the issue through

legislation.

164

Although the extent of the protection available varies

from state to state, such state statutes have the potential to greatly

improve upon the protections currently available under federal law.

State statutes can apply to all employers, regardless of size or

impact on interstate commerce. These statutes can also directly

prohibit discrimination against individuals with criminal histories,

making this group a protected class, rather than forcing aggrieved

individuals to show a disparate impact on an already-recognized

protected group. Thus, those who have a criminal record, but who

are not otherwise members of a protected group, would be protected.

Furthermore, allowing individuals to bring suit under a direct

discrimination theory can preserve the remedies of compensatory

and punitive damages (to the extent provided by statute), and may

reduce the evidentiary burden on plaintiffs as compared to disparate

impact cases. Given that those with criminal records may tend to

have even fewer resources than other traditionally protected groups,

the possibility of greater potential damages and a lower evidentiary

burden may put civil actions within reach, even where a federal

disparate impact claim might be beyond reach.

At the same time, the greatest benefit of state statutes

prohibiting discrimination against those with criminal records is

that such statutes can serve as a testing ground for achieving the

optimum balance between combating unjustified discrimination and

protecting society from the potentially dangerous or harmful acts of

ex-offenders. It is here that discrimination against those with

criminal records differs somewhat from discrimination against

traditionally protected groups: for individuals with criminal records,

there is a strong countervailing interest in protecting society by

allowing discrimination in certain cases.

Yet, in a sense, this balancing of interests is not new at all.

Existing federal statutes make exceptions to prohibitions against

discrimination, allowing discrimination on the basis of age where

age is a “bona fide occupational qualification reasonably necessary

to the normal operation of the particular business,”

165

or on the basis

164. See supra Part III.

165. 29 U.S.C. § 623(f)(1) (2000).

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1021

of disability where selection criteria have “been shown to be job-

related and consistent with business necessity.”

166

Similarly, state

statutes seeking to prevent discrimination against those with

criminal records allow exceptions where the criminal conduct or

conviction record bears a relationship to the position.

Whether the appropriate degree of relationship between the

conviction and the position should be merely “related”

(Pennsylvania), “substantial” (Wisconsin), or somewhere in between

is a matter that is open for debate. What is clear is that some level

of protection greater than that currently available under federal law

is warranted. Nobody is perfect, after all. People who make

mistakes resulting in criminal conviction should be allowed to

recover from them and reintegrate into society. Is society really

better off by denying employment as a bus driver to someone who

had some role in a felony forty years ago? Is the state of affairs

really advanced by denying employment at a home improvement

store to an employee who has earned consideration for promotion,

because his record is scarred by a six-year-old drug conviction?

A rational employer, when choosing between otherwise equally

qualified applicants, can be expected to consistently choose the one

without the criminal record over the one whose record is imperfect.

Where the nature and circumstances of an individual’s criminal

record indicate an unacceptably high level of risk for a given

position, such discrimination may be justified. At the same time,

this justification must not be extended recklessly to allow

discrimination at whim. Such unbridled discrimination may keep

ex-offenders unemployed, reducing on-the-job risks but potentially

increasing risks to society as a whole. Will an ex-offender who is

unable to secure honest employment be less likely to commit a crime

while unemployed, or more likely?

B. City and County Ordinances

It merits mentioning that a number of major cities have

recently adopted ordinances that seek to prevent discrimination in

employment among city employees.

167

The City of Boston, for

166. 42 U.S.C. § 12113(a) (2000).

167. These include Boston, Chicago, Minneapolis, San Francisco, St. Paul,

Alameda County (California), Indianapolis and Marion County, the County and

City of Los Angeles, Newark, and the City and County of Philadelphia. Certain

traditionally sensitive job categories where ex-offenders are barred by statute,

such as law enforcement and education, are exempt. The action has been

lauded as moving in the right direction in that it provides opportunities for

currently law-abiding ex-offenders whose offenses may have been minor and in

the distant past. See N

ATIONAL EMPLOYMENT LAW PROJECT, MAJOR U.S. CITIES

ADOPT NEW HIRING POLICIES REMOVING UNFAIR BARRIERS TO EMPLOYMENT OF

1022 WAKE FOREST LAW REVIEW [Vol. 42

example, will conduct a criminal background check on applicants

only after it has determined that the applicant is otherwise qualified

for the position.

168

This important measure helps to ensure that

applicants are not automatically removed from consideration on the

basis of their criminal record. If the employee is otherwise qualified,

the City may still decline to hire the applicant on the basis of her

criminal record, but the decision must be made after a consideration

of the following factors: (1) the seriousness of the crime, (2) the

relevance of the crime, (3) the number of crimes, (4) the age of the

crime, and (5) the occurrences in the life of the applicant since the

crime.

169

Where an adverse employment decision is made, the

applicant must be notified of the “specific reason(s)” for the

rejection.

170

This requirement serves as a procedural safeguard by

promoting transparency in the hiring process and facilitating

monitoring of the effectiveness of the ordinance, which monitoring is

required by law.

171

Extending the reach of these policies as widely as

possible, the City of Boston has declared that it “will do business

only with vendors [defined to include contractors as well as

suppliers of goods and services] that have adopted and employ

[Criminal Offender Record Information Act]-related policies,

practices, and standards that are consistent with” the policies

already employed by the City.

172

San Francisco has recently adopted similar policies. In 2005,

the San Francisco Board of Supervisors adopted a resolution urging

the Civil Service Commission and the Department of Human

Resources “to review and revise current policies and procedures . . .

so that people who have been . . . convicted of criminal activity are

not unreasonably denied City employment.”

173

The Board further

supported the elimination of questions on preliminary application

forms requiring applicants to disclose all past convictions.

174

Such

check-the-box requirements at the early stages of the application

process were considered to potentially promote needless

discrimination.

175

In response, the San Francisco Civil Service

Commission issued a revised policy requiring that due consideration

be given to seven factors when reviewing an applicant’s criminal

PEOPLE WITH CRIMINAL RECORDS (2007), http://www.nelp.org/nwp/

second_chance_labor_project/citypolicies.cfm.

168. B

OSTON, MASS., MUN. CODE § 4-7.3(b) (2005).

169. Id. § 4-7.3(e).

170. Id.

171. Id. § 4-7.5.

172. Id. § 4-7.3.

173. City and County of S.F., Cal., Res. 764-05 (Oct. 11, 2005).

174. Id.

175. Id.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1023

history information: (1) the nature and gravity of the offense, (2) the

degree to which the conviction is related to the position, (3) the time

elapsed since conviction, (4) the age of the applicant at the time of

the conviction, (5) the frequency of convictions, (6) evidence of

rehabilitation, and (7) any other mitigating circumstances.

176

current city employee may be disciplined or terminated where that

employee’s criminal history record contains information that is

“material to the employee’s employment.”

177

Moreover, a criminal

background check will only be performed after the applicant has

been preliminarily evaluated and deemed to have met the minimum

qualifications for the position.

178

C. Existing Federal Laws Impact Employee Rights and Employer

Decisions Regarding Arrest and Conviction Records

Numerous federal statutes may restrict employers’ actions with

respect to criminal convictions of applicants or employees. Title VII

of the Civil Rights Act of 1964 prohibits employment discrimination,

including the use of arrest or conviction records in a manner that

disparately impacts protected groups based on race, color, religion,

sex, or national origin.

179

In essence, employers should not use such

records to make employment decisions, unless the record is relevant

to the individual’s ability to perform the job. If an applicant or

employee has an arrest or conviction record and is a member of a

protected class disparately impacted by exclusion of those with a

176. S.F. CIVIL SERVICE COMM’N, DISCLOSURE AND REVIEW OF CRIMINAL

HISTORY RECORDS (2006), http://www.sfgov.org/site/civil_services_page.asp?

id=43695.

177. Id.

178. Telephone Interview with Jennifer Johnston, Chief of Policy & Admin.,

City & County of S.F., Cal. (Mar. 28, 2007).

179. 42 U.S.C. § 2000e-2(a) (2000); see also E

QUAL EMPLOYMENT

OPPORTUNITY COMM’N, EEOC COMPLIANCE MANUAL, at 15-29 to -30 (2006),

available at http://www.eeoc.gov/policy/docs/race-color.html.

In addition to avoiding disparate treatment in rejecting persons based

on conviction or arrest records, upon a showing of disparate impact,

employers must be able to justify such criteria as job related [sic] 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, the above

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.

Id. (citations omitted).

1024 WAKE FOREST LAW REVIEW [Vol. 42

record, then the absence of such a record must meet the standard of

a business necessity for the position.

180

The Age Discrimination in

Employment Act (“ADEA”) similarly protects applicants and

employees forty years of age or more who have records of an arrest

or conviction that are disparately impacted by an employment

criteria relating to such records.

181

The Americans with Disabilities

Act (“ADA”) prohibits employment discrimination against otherwise

qualified individuals with disabilities that constitute major life

impairments, including rehabilitated substance abusers with

records of addiction.

182

Because rehabilitated substance abusers

may have arrests or criminal convictions related to possession of

illegal substances or even driving under the influence, the ADA’s

protections also come into play for employment decisions regarding

individuals who fit into this protected category. Finally, the

National Labor Relations Act (“NLRA”) protects applicants and

employees who engage in concerted activities, such as matters

related to wages, hours, working conditions, mutual aid or

protection, or unionization, from discrimination by employers.

183

Clearly, Title VII, the ADEA, the ADA, the NLRA, as well as state

and local laws, should be carefully considered any time that a

covered employer makes an employment decision about a member of

one of these protected groups who has been, or is later convicted of a

crime.

184

180. See DAVID P. TWOMEY, LABOR & EMPLOYMENT LAW 417 (13th ed. 2007)

(discussing Title VII actions regarding the use of arrest and conviction

inquiries, the EEOC’s position regarding such use, and the requirement that an

employer show a business necessity if disparate impact is found).

181. 29 U.S.C. § 623 (2000).

182. 42 U.S.C. § 12112(a) (2000); see Raytheon Co. v. Hernandez, 540 U.S.

44 (2003) (involving employer Raytheon’s refusal to rehire former employee who

had tested positive for cocaine prior to his voluntary resignation and the legal

implications of no-rehire policies); Christine Neylon O’Brien, Facially Neutral

No-Rehire Rules and the Americans with Disabilities Act, 22 H

OFSTRA LAB. &

EMP. L.J. 114, 122–23 (2004) (discussing Raytheon); Christine Neylon O’Brien &

Jonathan J. Darrow, The Question Remains after Raytheon Co. v. Hernandez:

Whether No-Rehire Rules Disparately Impact Alcoholics and Former Drug

Abusers, 7 U. PA. J. LAB. & EMP. L. 157 (2004) (discussing Raytheon); James R.

Todd, “It’s Not My Problem”: How Workplace Violence and Potential Employer

Liability Lead to Employment Discrimination of Ex-Convicts, 36 A

RIZ. ST. L.J.

725, 729–30 (2004) (noting that although “the majority of the states place few

restrictions on the use of criminal records to exclude prospective applicants

from employment[,] . . . some states, namely Wisconsin, New York, Illinois,

Pennsylvania and Hawaii, explicitly bar employers from . . . [such]

discrimination”).

183. 29 U.S.C. §§ 157, 158(a) (2000).

184. It should be noted that varying minimum numbers of employees (from

fifteen to twenty) are required under the federal anti-discrimination statutes in

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1025

D. New Federal Legislation Recommended and Proposed

A federal statute mandating nondiscrimination for those with a

criminal record would provide uniformity, simplifying matters for

employers that employ across state lines. Moreover, there is a

greater likelihood that ex-offenders would be aware of the

protections of one federal law.

185

A federal law regarding

nondiscrimination in employment based upon criminal records of ex-

offenders need not be as broadly configured as the proposed Second

Chance Act, which has stalled in Congress for several terms but was

recently reintroduced by Congresswoman Stephanie Tubbs Jones

and Congressmen Danny Davis and Chris Cannon.

186

That proposed

bill would fund proactive prisoner reentry programs covering many

more aspects than employment, e.g., areas such as housing, health,

and mentoring.

187

The most recent bill makes no provision for anti-

order for an employer to be considered a “covered entity” and required to comply

with the federal statutes; the employee thresholds for state antidiscrimination

laws are generally lower. See Stephanie M. Greene & Christine Neylon

O’Brien, Partners and Shareholders as Covered Employees Under Federal

Antidiscrimination Acts, 40 A

M. BUS. L.J. 781, 782 n.3 (2003) (discussing

employee thresholds under federal statutes); Stephanie Greene & Christine

Neylon O’Brien, Who Counts?: The United States Supreme Court Cites “Control”

as the Key to Distinguishing Employers from Employees Under Federal

Employment Antidiscrimination Laws, 2003 C

OL. BUS. L. REV. 761, 762 n.2

(discussing same); Lau, supra note 42, at 722–28 (comparing Title VII, which

protects those with criminal records when they are also members of a protected

minority group, to state laws that protect everyone with arrest or conviction

records and do not provide exclusions based on the number of employees

working for an employer).

185. But see Todd, supra note 183, at 761–62 (expressing reservations about

ex-convicts being added as a protected class under Title VII because of the

variations among states regarding liability for negligent hiring).

186. H.R. 1593, 110th Cong. (2007); Press Release, Congresswoman

Stephanie Tubbs Jones, Congresswoman Tubbs Jones Reintroduces Second

Chance Act of 2007 (Mar. 23, 2007), available at

http://tubbsjones.house.gov/index.cfm?sectionid=24&parentid=23&sectiontree=

23,24&itemid=91.

187. H.R. 1593 § 111(b)(4); see also Michael Pinard, An Integrated

Perspective on the Collateral Consequences of Criminal Convictions and Reentry

Issues Faced by Formerly Incarcerated Individuals, 86 B.U.

L. REV. 623, 681–82

(2006) (discussing the Second Chance Act of 2005 and noting that it would call

for the United States Attorney General and others to form an inter-agency task

force to study federal and other barriers to successful reentry, including

employment-related barriers). In the House bill introducing the Second Chance

Act of 2005 on April 19, 2005, President Bush’s 2004 State of the Union Address

is quoted: “We know from long experience that if [former prisoners] can’t find

work . . . they are much more likely to commit crimes and return to prison . . . .

America is the land of the second chance, and when the gates of the prison

open, the path ahead should lead to a better life.” H.R. 1704, 109th Cong. § 2(4)

1026 WAKE FOREST LAW REVIEW [Vol. 42

discrimination in employment for ex-offenders.

188

The bill does

reference promoting the employment of people released from prison,

jail, or juvenile facilities, and facilitating the creation of job

opportunities, including transitional and time-limited subsidized

work experiences, by providing financial incentives, connecting

offenders to employment, and “address[ing] obstacles to employment

that are not directly connected to the offense committed and the risk

that the offender presents to the community.”

189

A narrower way to address employment discrimination against

those with criminal records would be to amend Title VII of the Civil

Rights Act to include those with criminal records as a protected

class.

190

This would make it an unlawful employment practice to

discriminate against such individuals absent a showing that a

conviction record is at least rationally related to the position, if not a

business necessity. Title VII seems the logical place to address this

problem. More minorities than non-minorities have criminal

records, and the matter is of concern to the EEOC, which has

instructed on the discriminatory use of arrest and criminal records

(2005) (quoting President George W. Bush, State of the Union Address (Jan. 20,

2004), available at http://www.whitehouse.gov/news/releases/2004/01/20040120-

7.html)). According to a summary of The Reducing Recidivism and Second

Chance Act of 2007, introduced March 29, 2007 by Senators Biden, Specter,

Brownback, and Leahy, the purpose of the Act is “[to provide] competitive

grants to promote innovative programs to test out a variety of methods aimed at

reducing recidivism rates.” Justice Fellowship, OnePager: The Reducing

Recidivism and Second Chance Act of 2007 (2007),

http://www.justicefellowship.org/media/justicefellowship/Docs/SCAOnePager_ne

w_070329.doc. The budgetary authorization recommended is $181 million

annually. Id. The bill’s proponents note that offenders re-enter society with

little or no job skills, sixty percent are unemployed, and two-thirds of released

prisoners are expected to be rearrested for felonies or serious misdemeanors

within three years of release. Id. Employment discrimination against ex-

offenders is not mentioned in the summary. See also H.R.

REP. No. 110-140, at

1 (2007) (discussing the purpose of the Second Chance Act).

188. Recidivism Reduction and Second Chance Act of 2007, S. 1060, 110th

Cong. (2007). The Senate and House bills are similar. The Senate’s bill was

introduced on March 29, 2007. Id. The House bill was introduced on March 20,

2007. H.R. 1593.

189. S. 1060 § 101 (a)(4).

190. 42 U.S.C. § 2000e-2(a), (b), (c)(1)–(2), & (d) (2000) could be amended to

add “or criminal record” to the list of protected status groups. In addition,

qualifying language could be added to establish a standard of business

justification or necessity regarding consideration of the relevance of a criminal

conviction record. Arrest records should not be the basis for exclusion or

discrimination. Special care would have to be taken to integrate this proposed

protection with existing laws that regulate and prohibit access to certain

professions and licensed occupations for those with criminal conviction records.

2007] EX-CONVICTS & ANTIDISCRIMINATION LAWS 1027

where members of protected groups are disparately impacted.

191

Also, there is a considerable body of law and guidance built up

around the statute.

While federal law already provides some protection from

adverse employment action for those in otherwise protected groups

who have criminal records, this protection is far from

comprehensive. Not only may small employers be outside the scope

of the various federal laws, but aggrieved individuals must in any

case show that the challenged employment action disparately

impacts a protected group. This showing can be difficult to make.

Even if made, disparate impact cases do not allow for the recovery of

punitive or even compensatory damages, reducing their

attractiveness and utilization.

192

Absent federal legislation in this

area, ex-offenders may, depending upon geographical location, look

to state statutes or local ordinances for protection from

discrimination in employment, but there will be many more ex-

offenders who will have no protection from discrimination and,

consequently, no employment.

Perhaps it is unrealistic to recommend or expect the enactment

of federal legislation on this issue in light of the current political

climate where there is considerable resistance to adding to the

regulatory burden of business. The fear of lawsuits brought by

members of protected classes, and a concomitant concern about

retaliation allegations,

193

have reportedly placed some employers in

a position where they are afraid of making legitimate employment

decisions.

194

However, employers that recognize a moral obligation

to offer opportunities on a fair and equal basis to the entire

community may be drawn to adopt a voluntary program concerning

treatment of those with criminal records. A voluntary program

would allow employers to incorporate palatable standards that

relate to their particular businesses, and would permit them to

selectively assist motivated and otherwise qualified individuals who

have paid the price for their mistakes in gaining access to

191. EEOC Compliance Manual, supra note 179, at 15-29 to -30.

192. Elaine W. Shoben, Disparate Impact Theory in Employment

Discrimination: What’s Griggs Still Good For? What Not?, 42

BRANDEIS L.J. 597,

598 (2004).

193. Retaliation allegations involve claims by employees that they were

adversely treated after they brought up a claim of mistreatment or

discrimination. 14A C.J.S. Civil Rights § 246 (2006).

194. Michael Orey, Fear of Firing: How the Threat of Litigation is Making

Companies Skittish about Axing Problem Workers, B

US. WK., Apr. 23, 2007, at

52. This cover story notes that in 2005 and 2006, thirty percent of all charges

filed at the Equal Employment Opportunity Commission were retaliation

claims. Id. at 55.

1028 WAKE FOREST LAW REVIEW [Vol. 42

employment opportunities. Such programs could follow a model

similar to that of voluntary affirmative action programs with

flexible goals and timetables, and financial incentives may be

available if legislation such as the proposed Second Chance Act is

enacted.

195

ONCLUSION

To a considerable extent, society’s attitude toward those with

criminal records is comparable to its attitude toward power plants,

power lines, highways, and reservoirs: it is generally agreed that

these structures are necessary and beneficial to modern society, but

no one wants them to be located on or near their property.

Similarly, it is generally agreed that employment is beneficial to ex-

offenders, but often no employer wants to be the one employing

them. Appropriate laws can and should correct this market failure,

encouraging rehabilitation and reintegration through employment,

while at the same time providing sensible limits to promote safety

for all. A number of states and major cities have taken steps to

eradicate employment discrimination against qualified applicants

and employees who carry the burden of a criminal record. But the

standards vary from state to state, and city to city, with some states

having no protection, and city ordinances providing limited

coverage. If federal protection is enacted, it is more likely that ex-

offenders will have a fair chance to obtain employment upon re-

entry after prison or while on probation. We must ask ourselves

whether we as a society want ex-offenders to have a second chance

at a legal lifestyle, and what is the alternative?

195. See supra notes 187–90 and accompanying text.