United States: Wanted: Applicants With A Criminal History And An Unprofessional Hairstyle

Last Updated: November 29 2013
Article by T. Matthew Miller

A combination of recent enforcement efforts by the Equal Employment Opportunity Commission (EEOC) and state-level legislators has employers scratching their heads about what they can and cannot consider when making hiring decisions. On the one hand, the EEOC appears to want to eliminate employer hairstyle and grooming policies and severely restrict or eliminate criminal background checks. When combined with some local and state "ban-the-box" laws, many employers are asking why they must not only consider, but also apparently hire, applicants with a criminal history and unprofessional hairstyles.

The EEOC is getting into employers' hair. The EEOC recently filed a lawsuit in the U.S. District Court for the Southern District of Alabama alleging that a company's policy of prohibiting excessive hairstyles and requiring a "business/professional look" discriminates based on race in violation of Title VII of the Civil Rights Act of 1964. EEOC v. Catastrophe Management Solutions, Case No. 1:13-cv-0476. The agency's complaint claims that the employer withdrew a job offer to applicant Chastity Jones because she wore dreadlocks, which the company considers an "excessive" hairstyle. The EEOC's position is that the policy "focuses on the racial bias that may occur when specific hair constructs and styles are singled out for different treatment because they do not conform to normative standards for other races."

Although employees and the EEOC have challenged hairstyle and grooming policies based on religious discrimination or failure to accommodate certain disabilities (for example, no-beard policies enforced against employees with serious skin conditions), established court precedent holds that neutral hairstyle and grooming codes, including those that prohibit dreadlocks, do not violate Title VII's ban on race discrimination unless an employer applies such policies unfairly based on race—for example, prohibiting African-American employees from wearing dreadlocks while allowing white employees to wear them.

As addressed in one of our breakfast seminars earlier this year, the EEOC has also pushed its position that considering criminal convictions in hiring can be racially discriminatory. The agency has issued guidelines on the topic and filed federal lawsuits against employers that use background checks. Employers are struggling to reconcile the EEOC's position with the reality of internal theft and workplace violence, which has left some employers asking, "Where in Title VII are criminals listed as a protected category?"

Combine that with the fact that a growing number of localities and states are considering, and sometimes passing, legislation that "bans the box"—that is, prohibiting employers from including a box on applications asking whether an individual has been convicted of a crime. While the laws vary as to application (public versus private employers) and carry certain exclusions for safety-sensitive positions, some employers are feeling the pressure to modify their hiring standards to address this regulatory push. The idea behind the ban-the-box legislation is to give individuals with a criminal history a second chance and prevent employers from automatically rejecting applications that disclose a criminal past. The reality of the legislation is a continued chipping away of employer autonomy in hiring decisions.

This line of recently filed cases, taken together with EEOC guidance and local and state level legislation, suggests that employers will continue to face regulatory pressure regarding whom they must consider and whom they cannot reject for available employment positions. At the outside, this regulatory push could ultimately result in the creation of new protected classes under Title VII or its state-law counterparts. Does this mean employers should revise their handbooks to state they will not discriminate based on race, gender, disability, age, national origin, criminal conviction, or unprofessional hair? Employers need not go that far.

If the courts follow established precedent, the EEOC's enforcement efforts should find little or no traction absent decisions by Congress or state legislatures to change the laws. However, you should be on high alert to this trend toward increased regulation of the hiring process. Start by reviewing your policies, annually if possible, and comparing them to the EEOC's guidelines and the laws of the states in which you operate. Additionally, you should review your applications and hiring procedures to ensure compliance and eliminate unnecessary risks. You should also make sure your policies and procedures are related to and actually enhance your business model and are not outdated or unnecessary. Finally, confirm that your policies are written in a neutral manner and being applied fairly and consistently.

If the EEOC prevails in expanding the law to cover characteristics that are not immutable—such as hairstyles and conviction records—then employers may need to adjust their approach. Until then, there is no need to place want ads seeking convicts with unprofessional hairstyles. Instead, you should continue to focus on what you have always sought—to hire the most qualified applicants you can find to grow and support the business—and you should review and adjust your policies as needed to legally accomplish that goal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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