Last week, the FDNY announced that it would hire “qualified” convicted felons, qualified meaning that they meet the hiring requirements and have received some special certification from a parole board that they are considered fit for duty in the eyes of the state of New York. There appears to be a lot of disgust over this decision, judging from the commentaries. But what does the law say about the FDNY's decision? Let’s take a look.
No federal law bars employers generally from hiring someone with a conviction (felony or misdemeanor). It has long been the province of employers, private and public, to set their own minimum hiring qualifications, which can include a bar on hiring convicted felons. The concern of the agencies enforcing workplace discrimination laws, such as the Equal Employment Opportunity Commission (EEOC), with such policies is this: if an employer’s policy to bar applicants with a felony conviction tends to screen out members of a particular minority group (generally, African-Americans and Hispanics) more than other individuals, there may be an unlawful disparate impact on that minority group. To put it simply, it is the same argument made in the testing cases — a particular PAT requirement is unlawful because it tends to screen out otherwise qualified female applicants. The Department must show, whether a physical requirement or felony conviction disqualification, that there is a “business necessity” for the imposition of the requirement. A department has to consider how the offense(s) related to the firefighting position, as well as how much time has passed since the conviction or completion of the sentence.
What arguments would you make to show that the following type of offenses should bar employment as a firefighter?
- A 28-year-old applicant convicted when he was a stupid teenager, in the wrong place in the wrong time, being a passenger in a car used in a drive-by shooting in which he had no involvement or prior knowledge;
- Applicant embezzled $35,000 in his prior job as a bookkeeper;
- Applicant killed a man who attacked a woman in a bar with a knife, while attempting to protect her;
- Applicant convicted in the deaths of three people for a vehicular crash she caused while intoxicated — she unwittingly drank while also taking pain and cold medication;
- Applicant convicted of child pornography five years ago; and
- Applicant is a registered child sex offender — at the age of 17, 10 years ago, he had sex with his 15-year-old girlfriend.
Each of these situations requires some contemplation, don’t you think?
The bottom line? A department, in the absence of a state or local law prohibiting it, may have a blanket policy prohibiting the hiring of former felons. If it does, that department should be prepared to enunciate a good business reason why the blanket disqualification is necessary. A better approach, one more likely to pass scrutiny by the EEOC, in my humble opinion, would be to have a policy such as the following: “Felony convictions are not an absolute bar to department employment. Whether a felony conviction will bar employment will be determined on an individualized basis.”
Are there any type of offenses you believe should be an absolute bar to employment as a firefighter?