Under Florida law, employers could face civil liability for the harm an employee causes to a third party. For that reasons, employers might wish to conduct a thorough investigation of a job applicant’s or current employee’s criminal record. According to federal guidelines, however, federal law could impose liability on employers who base their employment decisions on criminal records.
Under Title VII of the federal Civil Rights Act of 1964 (“Title VII”), employers are prohibited from discriminating on the basis of race, color, religion, gender, or national origin. Title VII prohibits not only “disparate treatment” (i.e., refusing to hire an African American applicant based on his criminal record and instead hiring a white applicant with a comparable criminal record), but also “disparate impact.” Disparate impact occurs when the employer implements a facially-neutral policy that, in practice, has the effect of disproportionately screening out a protected group (i.e., a particular race, color, religion, gender, or national origin). For example, a policy that screens out all applicants that have ever been convicted of a felony does not, on its face, discriminate on the basis of race or color. However, in practice, the policy might have the result of disproportionately screening out African American or Hispanic applicants. Such a policy could form the basis for “disparate impact” claim of discrimination.
In April 25, 2012, the Equal Employment Opportunity Commissions (“EEOC”) issued federal guidelines based on Title VII. According to the federal guidelines, African Americans and Hispanics are incarcerated at rates disproportionate to their number in the general population. For that reason, the federal guidelines state that facially neutral policies that screen out applicants based on criminal convictions might violate Title VII if the policies are not job-related and consistent with business necessity.