The Equal Employment Opportunity Commission contends employers cannot have a blanket policy stating they will not hire convicted felons, according to Augusta attorney Edward Enoch.
That approach is based on the belief that blacks and Hispanics are disproportionately charged and convicted of crimes. So, even if an employer has no personal prejudice against blacks or Hispanics, the blanket policy has the same effect. A white convicted felon could also make a claim because it's the policy, not the person, who is affected.
In Richmond County over the past 10 years, the ratio of those indicted for felony crimes is nearly 3-to-1 black-to-white among defendants.
However, Enoch said, there are perfectly legitimate reasons for an employer to deny a convicted felon a particular position.
An employer is within his rights to deny a job that requires interaction with the public for someone convicted of a violent crime, for example. Otherwise, he said, the employer could be liable if the person becomes violent again with customers or co-workers. If the job calls for working alone in an empty warehouse, the same argument can't be made, he said.
Enoch stressed, however, that this is EEOC policy, not law. It doesn't become law unless Congress says it is (and the president agrees) or the U.S. Supreme Court rules the EEOC interpretation is correct.
Augusta Attorney Mike Brown agreed, but said he thinks a convicted felon would have a hard time convincing a judge or jury he was discriminated against.
"There are trust issues in almost every job," and an employer might find a convicted felon a person to distrust, he said.
The employer has to look at the job and relate how a conviction is relevant. If the job requires driving a dump truck, then the employer is within his rights to deny the job to anyone with a history of driving offenses or DUI.
Brown wondered, what if you have a person who had a drug problem, who did his time and then went through rehab and has turned his life around? Why should he be disqualified?
An employer would be within his rights -- and protect the business from possible liability -- to require random drug tests. Hiring a convicted sex offender for a job that requires interaction with public and co-workers, on the other hand, could be dangerous if there's another offense.
"Guess who is going to get sued?" Brown said. "The truth is, the courts give employers a wide latitude (in making hiring decisions) and they should. An employer just cannot have a blanket policy that excludes any convicted felony."