“Ban the Box” Laws
At least thirteen states, the District of Columbia, and almost 100 cities and counties have passed so-called “ban the box” laws, which restrict the scope of permissible investigations into job applicants’ criminal history, and, in some cases, the timing of such inquiries.
If an otherwise qualified job candidate has a record of criminal convictions, the EEOC and numerous state and local laws require employers to conduct an individualized, fact-based assessment of the candidate and the crime, to determine whether the latter actually is job related for the position in question, and whether rejecting the applicant because of this conviction is consistent with business necessity. Among the relevant considerations are the nature of the conviction, the elapsed time since the conviction, evidence of rehabilitation, and the nature of the job sought.
Because many “ban the box” laws are relatively new, employers do not yet have the benefit of a robust body of case law defining the parameters of these inquiries. The Hawaii Supreme Court’s recent decision in Shimose v. Hawaii Health Systems Corp., No. SCWC-12-0000422 (Jan. 16, 2015), offers some interesting guidance.
The Facts in Shimose v. Hawaii Health Systems Corp.
Hawaii’s “ban the box” law allows employers to consider an applicant’s criminal conviction history, but requires that an adverse employment decision be justified by a showing “that the conviction bears a rational relationship to the duties and responsibilities of the position.” Haw. Rev. Stat. Sec. 378-2.5 (Supp. 2007).
The plaintiff in the Shimose case was convicted in 2001 of possession with intent to distribute crystal methamphetamine, and sentenced to more than three years in prison. While in prison, he completed a bachelor’s degree and began investigating radiological technician (“radtech”) programs. Upon his release from prison, Shimose enrolled in a radtech program at a community college. One of his clinical rotations brought him to the defendant’s facility, Hilo Medical Center (HMC), which removed Shimose from the program after learning about his drug conviction. Shimose completed his clinical work at another medical facility, and graduated from the radtech program with an Associate’s Degree in 2007. He then applied for vacant radtech positions at HMC and was rejected because of his felony drug conviction.
Employer’s View: Heightened Risk That Technician Would Steal Drugs
In the ensuing litigation, HMC argued that its decision was justified by a number of business-related concerns: (1) that radtechs treat vulnerable patient groups such as children, geriatrics and disabled individuals; (2) that many of these patients are in “compromised” mental or physical states and/or on pain medication; (3) radtechs are often alone and unsupervised when imaging patients; (4) radtechs have access to patient charts that disclose what medication the patient is taking, which created a risk that they might take patients’ medication; (5) radtechs have access to an array of drugs that are not readily available to the public, related supplies such as syringes and needles, the supplies found in anesthesia carts and crash carts, and (6) they have access to all areas of the hospital, many of which contain stored quantities of drugs and related supplies. Contending that individuals with felony drug convictions were unfit to handle controlled substances, and that as a matter of law it had established a rational relationship between Shimose’s conviction and the duties of a radtech, the hospital asked the court to enter summary judgment in its favor.
Employee’s View: Job Duties Did Not Give Him Access to Drugs
Shimose disputed that he would have access to controlled substances in the hospital, saying that all such substances were locked in the hospital pharmacy and not available in crash carts or anesthesia carts. He maintained that radtechs did not administer any controlled substances and had no access to patients’ medication, that technicians were not exposed to vulnerable patient populations any more than other health care workers, and were rarely alone with such patients because more than one technician usually was needed to handle patients in weakened conditions.
The trial court granted HMC’s summary judgment motion, agreeing that the hospital had established a rational relationship between Shimose’s criminal history and the duties of the radtech position. The intermediate appellate court affirmed this decision, but the Hawaii Supreme Court reversed it, finding that there were material issues of disputed fact about radtechs’ access to controlled substances.
Hawaii Supreme Court: Employer Did Not Establish Job-Relatedness
The Hawaii Supreme Court looked closely at HMC’s job description for the radtech position, identifying the core duties of that position as conducting medical imaging tests, and preparing and maintaining the imaging equipment. Other duties included preparing patients for imaging, making sure they were comfortable and informed about the process, and processing, reviewing and transmitting images. The court found no evidence in the record that radtechs at HMC administered or even assisted patients with any type of drugs, and held that “[a] felony drug conviction simply has no bearing on an individual’s ability to perform the primary imaging duties of a radtech at HMC.” Consequently, the court held, there was no rational relationship between the drug conviction and the core job duties of the position.
The court acknowledged that a rational relationship might be established if HMC could prove that radtechs had access to controlled substances in the hospital, but because the parties had different versions of the facts on this issue, the dispute would have to be resolved by a trier of fact.
The court was less persuaded by HMC’s arguments about vulnerable patient populations, saying that the risk of their medication being taken from them was “somewhat speculative.” HMC had not produced evidence that such patients did in fact have medication with them, or that technicians could gain access to that medication; it merely asserted that such a risk existed. The court also expressed doubt about the theory that vulnerable patients could be sold an illegal drug, saying that if any contact with young or elderly patients created a rational relationship to a prior drug conviction, “then all individuals with prior drug convictions could be disqualified from any job that dealt with the public at large.” Such a broad prohibition would not be consistent with the balancing between employer and employee interests contemplated by the legislature when it enacted the law. The case was remanded to the trial court for further action.
The Shimose case draws an important distinction between positing plausible-sounding risks and actually proving them. Considerations of patient safety often are given much weight by courts, and in this case the trial court and intermediate appellate court were willing to defer to the hospital’s apparently rational concerns. In contrast, the Hawaii Supreme Court took a closer look at the position’s job duties and the facts pertaining to the manner in which the hospital controlled access to drugs. In so doing, the court raised the job-relatedness bar a little higher.
As the “ban the box” movement continues to spread, employers – particularly those in safety-sensitive industries – face new challenges. They must be able to assess the risk of harm to customers, patients and employees without running afoul of anti-discrimination laws intended to open the job market to individuals with criminal histories. One thought when defending these cases at trial: Employers may wish to consider using expert testimony from criminologists, who have information about rates of recidivism and can help evaluate the risk of harm.