Some employers use criminal background checks as a matter of course before hiring people, regardless of whether the nature of an applicant's criminal past had anything to do with the job they would be doing. As we've discussed before, however, the broad, blind use of criminal background checks may result in a disparate impact against minority applicants, because minorities are disproportionately likely to have criminal records, even when their behavior is no different from their white peers.
In some industries such as teaching and nursing, employers are required to do criminal background checks before hiring, as we know. We also know that drug or alcohol addiction is at the root of a great deal of criminal behavior. Yet, as we saw during the recent uproar over the Minnesota Board of Nursing, there's often little sympathy for those who've had addiction problems in the past.
The criminal courts, in contrast, made the connection between addiction and criminal activity years ago. Many courts, in Minnesota and elsewhere, now offer pre-trial diversion programs for first-time offenders whose low-level crimes were motivated by addiction. Such programs include substance abuse treatment and, in many programs, successful completion gets the criminal charges being dropped. Unfortunately, they can still show up on employer background checks.
That happened to a man who applied for a teaching position in Philadelphia in 2009, according to his recent federal lawsuit. According to his complaint, he had resolved two unspecified convictions in 1999 through pre trial-diversion. Moreover, the instructions for the criminal background section of his job application said to omit any convictions resolved through diversion programs.
In 2011, after the school district found out about those old convictions, he was fired. According to the lawsuit, the school district claimed it terminated him for lying about his criminal history. He believes that’s a pretext; his firing was actually motivated by the old convictions.
A federal judge just dismissed the district’s attempt to dismiss the teacher’s wrongful termination claim, so the case will move forward.
We don’t have information to know whether the teacher was, in truth, wrongfully terminated. Still, when someone’s criminal record consists solely of charges that were dismissed through successful completion of a court-sponsored diversion program, do you think it’s fair to rely on that record in hiring decisions?
Source: Courthouse News Service, “District May Be Liable for Firing Convicted Teacher,” Rose Bouboushian, Jan. 28, 2014