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Your Employee Matters


By December 1, 2010No Comments

The case of EEOC v. Con-way Express, Inc. (8th Cir. September 26, 2010) involved an employer’s use of conviction records as a practice, but not a written policy. The EEOC sued on behalf of the charging party, Roberta Hollins, who claimed she was not hired based on her race. Hollins applied for a part-time position at the company’s Poplar Bluff, MO, office. The company’s service center manager, Kenneth Gaffney, interviewed her and recommended to his boss that the company hire her.

However, Gaffney’s boss expressed reservations about hiring her due to race. Gaffney told Hollins that if the company were to hire her, it would “open a can of worms” and “my boss told me not to hire you because if I hired you that was just asking for the NAACP.” This looks like a clear-cut case of racial discrimination, but that’s not how it turned out.

Answering a question on the employment application about prior convictions, Hollins wrote that she twice was convicted for shoplifting. Gaffney offered to employ Hollins, but failed to follow the company’s protocol, which involved obtaining approval from Human Resources before extending an offer. Gaffney was terminated and when Hollins told Gaffney’s supervisor about the employment offer, the supervisor said that he knew nothing about it and he would not hire her. The company hired a white male for the position, and stated that Hollins would not have been offered employment based on her prior convictions.

The EEOC argued that a jury should decide the question of whether Hollins was not hired based on her race because the employer’s background check policy was unwritten. The court ruled that it was irrelevant that the policy was unwritten. The company provided evidence that during the 18 months before Hollins applied, the company disqualified 28 applicants based on their criminal conviction history and no current employee had a criminal conviction. Said the court: “the [EEOC] argues that a reasonable jury could conclude that the policy did not exist because it was not in writing, but they do not cite any legal authority for the proposition that a policy must be in writing to be effective.”

The court got it right: An employer’s practice need not be in writing to be a bona fide, nondiscriminatory reason for an action taken. Furthermore, although the manager’s supervisor expressed reservations about hiring Hollins because of her race, she would not have been hired anyway due to her conviction record – a factor that the employer applied consistently to applicants.

Article courtesy of Worklaw® Network firm Lehr Middlebrooks Vreeland.