A recent case out of Hawaii serves as a reminder to employers to be careful before assuming that a prior conviction and job-related and disqualifying. In Shimose v. Hawaii Health Systems Corporation, the court recently refused to dismiss a claim of discrimination brought by a radiology technician who was denied employment by a hospital based on his felony conviction for possession with intent to distribute meth amphetamine.
Hawaii, like 4 other states (Kansas, New York, Pennsylvania, and Wisconsin), has a law that makes it illegal for an employer to discriminate on the basis of a prior conviction. Under Hawaii's law, employers may only use a criminal conviction to disqualify an applicant if it "bears a rational relationship to the duties and responsibilities of the position."
Now, I know you are probably thinking this would be easy for the hospital to prove. I mean, the guy is going to be working in a hospital with lots of access to serious drugs. Not so, says the Court. In this case, the plaintiff was able to bring forth enough evidence that he would not be unattended in patient rooms or given access to pharmaceutical storage that would contain narcotics to defeat summary judgment.
In addition, even though federal law does not specifically prohibit discrimination on account of a criminal conviction, the EEOC has been very vocal in recent years about how there might be a disparate impact to minority groups where employers have a policy of disqualifying candidates based on criminal convictions. Indeed, it reissued updated guidance on the use of arrest and conviction records in 2012.
The important thing for employers to remember is that analyzing whether a conviction is job-related is a highly specific fact question and that they should not have blanket rules that certain convictions will be disqualifying for certain positions.
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