Could you Legally Refuse to Hire Tommy Rees?

Posted by Kenneth N. Winkler on

Notre Dame Quarterback Tommy Rees was arrested early in the morning of Thursday, May 3.  According to South Bend police, Rees was at an off-campus party and jumped a backyard fence and ran after officers arrived at the party.   When a police office caught up to Rees and confronted him, Rees reportedly resisted arrest.  Rees now faces four misdemeanors: minor consumption, two counts of resisting law enforcement and battery.

Rees’ future at Notre Dame remains uncertain. Notre Dame spokesman Dennis Brown said in a statement, “Internal discipline is handled privately, in accord with our own policies and federal law.”   An interesting question also arises as to whether Rees’ arrest, even without a conviction, could impact his ability get hired outside of football.  In particular, could a potential employer legally exclude Rees from consideration based on the sole fact that he was arrested?

In light of recent legal developments, especially new enforcement guidance by the EEOC, an employer would be wise to avoid instituting any policy that automatically excludes an applicant because of an arrest.

On April 25, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII.   The new guidance clarifies and updates the EEOC’s policy concerning the use of arrest and conviction records in employment.  While Title VII does not prohibit an employer from requiring applicants or employees to provide information about arrests, convictions or incarceration, the law does forbid discrimination in employment based on race, color, national origin, religion, or sex.   For example, an employer would violate Title VII if it automatically excluded Hispanic applicants with arrest records but did not automatically exclude white applicants with arrest records.

Even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin.  This is referred to as disparate impact discrimination.   With respect to criminal records, Title VII disparate impact occurs where the evidence shows that an employer’s criminal record screening policy or practice disproportionately screens out a protected group.  For example, Pepsi Bottling Group recently agreed to pay $3.13 million and provide job offers and training to settle a charge of race discrimination.  The charge was based on Pepsi’s criminal background check policy that excluded applicants who had been arrested pending prosecution even if they had never been convicted of any offense.  The EEOC’s investigation revealed that more than 300 African Americans were adversely affected by the policy that disproportionately excluded black applicants.

As stated above, employers can screen out applicants with criminal records, but they must be able to demonstrate their policy or practice is job related for the position in question and is consistent with business necessity. Under the EEOC’s Guidelines, employers may consistently meet the “job related and consistent with business necessity” defense if the employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job.  The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.

As to Rees, because he is a white male, an employer may be able to rule him out for a job because of his arrest.   Nonetheless, to avoid unnecessary litigation and the wrath of the EEOC, employers should check their hiring policies and ensure that they are consistent with the EEOC’s guidelines.