Many employers in New Mexico want to know if a job applicant has a criminal background. While this can certainly be important information for an employer to have, requesting the information during the interview process can give rise to claims of discrimination against the employer. This article examines the current state of New Mexico law on asking job applicants about convictions, describes the EEOC’s recent move toward finding that disqualifying candidates based on criminal history can be discriminatory, and advises employers on best practices to avoid inadvertent discrimination in the hiring process.
New Mexico’s “Ban the Box” Law
“Ban the Box” is a national movement aimed at persuading employers to remove from their job applications the check box asking if the applicant has ever been convicted of a crime. In 2010, New Mexico became the second state in the nation to pass “Ban the Box” legislation with respect to state employment. Under this law, state government employers may not ask about an applicant’s criminal history on an initial application, and shall only consider a conviction “after the applicant has been selected as a finalist for the position.” NMSA § 28-2- 3(A). Further, while state employers may “take into consideration” an applicant’s criminal history, a conviction may not automatically disqualify someone from public employment. Id. This law only applies to the majority of state employers; it does not apply to private employers or law enforcement. See NMSA § 28-2-5.
During this legislative session, Senate Bill 78 (SB 78) proposes expanding Ban the Box legislation to private New Mexico employers. SB 78, which is sponsored by Senators Bill O’Neill (Bernalillo County) and Alonzo Baldonado (Valencia County), proposes that “if a private employer uses a written employment application, the employer shall not make an inquiry regarding the applicant’s conviction on the employment application but may take into consideration an applicant’s conviction after review of the applicant’s written application and upon discussion of the employment with the applicant.” On January 18, 2017, the Legislative Finance Committee prepared a Fiscal Impact Report regarding SB 78 and stated that the bill “may reduce costs stemming from recidivism by making it easier for ex-convicts to obtain and retain employment.” The Fiscal Impact Report also advises that “nine states – Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, Oregon, Rhode Island, and Vermont – now prohibit private as well as public employers from posing questions about a job applicant’s conviction history until later in the hiring process.”
Criminal Background Checks for Private Employers
Whether the employer can ask about criminal history as part of the initial application or later during the interview process, there are still limitations regarding the use of criminal background information during the hiring process. Under Title VII of the Civil Rights Act, employers may not screen job applicants based on criminal history if this practice significantly disadvantages racial minorities and does not accurately predict whether the applicant is likely to be a responsible, reliable or safe employee. There are two ways in which an employer may run afoul of the law when conducting background checks on applicants.
First, employers must not treat job applicants with the same criminal history differently fully on the basis of race. Second, even where employers hold every applicant to the same standard, this process could still have a disparate impact on applicants of certain races. If this is the case, the employer may only refuse to hire an ex-offender if doing so would be “job related and consistent with business necessity.”
Over the past several years, both the EEOC and individual plaintiffs have filed several lawsuits alleging racial discrimination on the basis of criminal background checks by employers. In these cases, the plaintiff must prove discriminatory impact by showing statistical evidence that the employer’s practice disadvantages racial minorities. The burden then shifts to the employer to show that its practice is job related and consistent with business necessity.
Best Practices for Avoiding Unintentional Discrimination Claims
To avoid inadvertent discrimination and the possibility of an expensive lawsuit, private employers in New Mexico should consider the following steps:
1. Do not refuse to hire someone based on an arrest record alone. 2 Just because someone was arrested does not mean they are guilty of a crime.
2. Although a conviction is reliable evidence of guilt, the EEOC recommends against a blanket policy of refusing to hire anyone with a criminal record. The EEOC advises, “A policy or practice that excludes everyone with a criminal record from employment will not be job related and consistent with business necessity and therefore will violate Title VII, unless it is required by law.”3 Instead, consider whether the applicant’s particular crime accurately predicts whether he will be a responsible, reliable or safe employee.
3. When considering applicants’ criminal records, apply the same standards to everyone. For example, you may not refuse to hire a minority applicant because of a misdemeanor conviction for public intoxication if you would overlook the same in a white applicant