Growing numbers of employers conduct pre-hire criminal background checks. These checks are used as a screening tool to disqualify applicants from eligibility for hire based on prior convictions. Last week, the Eighth Circuit Court of Appeals affirmed dismissal of a race discrimination claim brought by the EEOC, alleging that the employer's policy could not be used as a shield against discrimination claims brought by an applicant who alleged racial bias in the hiring decision.

In EEOC v. Con-Way Freight, Inc., the plaintiff was an African-American woman who applied for a customer service representative position. She was disqualified for the position based upon two misdemeanor shoplifting convictions. Under Con-Way policy, employees convicted of theft-related crimes were automatically barred from hiring. The EEOC alleged that during the interview process, Con-Way managers made a number of statements that indicated that race was a motivating factor in the decision not to hire the plaintiff.

The Eighth Circuit rejected the EEOC's contentions, affirming dismissal of the claim on summary judgment. Regardless of the alleged comments, the plaintiff was automatically disqualified from employment due to the theft convictions. Therefore, the managers' alleged statements were not relevant to the hiring decision, because she could not have been offered the job.

This opinion should be read by employers with caution. The EEOC brought the lawsuit on a disparate treatment theory, contending that the plaintiff was discriminated against based on the behavior of the hiring managers. In some cases, lawsuits challenging policies that disqualify applicants based on criminal convictions are brought under the disparate impact theory. These plaintiffs allege that the policies screen out higher numbers of minority applicants due to higher criminal conviction rates. If so, the employer must be able to demonstrate business necessity for the policy, and the lack of alternative means to accomplish the same goal without the disparate impact.

In other words, employers can exclude applicants based on prior criminal convictions, but they should be prepared to demonstrate the connection between concerns over repeat criminal behavior and the specific risks posed by having the applicant in that job.