Make sure your hiring decisions aren’t a pretext for discrimination

Q         We recently conducted a background check for a candidate we offered a job to and found the person has a pending felony conviction for theft that wasn’t disclosed. Because the job requires access to maintenance equipment with limited oversight, we’d like to rescind the offer and allow the person to reapply if the issue gets resolved. Are we allowed to do this, and are there any legal protections for the candidate?

In Mississippi, there’s no state law prohibiting employers from making a hiring decision based on a prior criminal conviction. Under federal antidiscrimination laws, however, courts have held employers liable for such decisions if reliance on a criminal conviction is a pretext for intentional discrimination based on a protected characteristic (e.g., sex, race, etc.). Courts have also held employers liable when reliance on a criminal conviction had a disparate impact on groups within a specific protected class, meaning even though an employer doesn’t intend to discriminate by relying on prior convictions when making hiring decisions, if the employer’s reliance results in the disproportionate exclusion of a group within a protected class from its workforce, federal antidiscrimination laws can be violated.