The Eighth Circuit Court of Appeals recently dismissed a race discrimination case based on the employer’s criminal records policy (EEOC v. Con-Way Express Inc., 09-2926-2930 (8th Cir. Sept. 22, 2010)). Con-Way Express had an unwritten but established policy of not hiring applicants with theft-related convictions. The applicant disclosed on her application that she had two misdemeanor shoplifting convictions. Based on those convictions, Con-Way Express chose not to hire the applicant. The EEOC sued on behalf of the applicant, claiming that Con-Way Express had discriminated against her based on her race.

The EEOC argued that Con-Way Express could not rely on the criminal record policy because it was unwritten. The Court rejected this argument, stating that there was sufficient evidence that the policy existed and was uniformly enforced because Con-Way Express had disqualified 28 applicants in the previous 18-month period due to their theft-related convictions. The Court concluded that the applicant would have been rejected regardless of her race, and therefore dismissed the case.

This case demonstrates the importance of uniform enforcement of company policies, even if those policies are not in writing. Contact Larkin Hoffman’s experienced team of Labor and Employment attorneys if you require assistance drafting your Company’s policies.