Employment Law Daily Applicant rejected over lack of candor and criminal history, not race
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Friday, July 1, 2016

Applicant rejected over lack of candor and criminal history, not race

By Lorene D. Park, J.D. Affirming summary judgment against the Title VII discrimination claims of an African-American whose job application was rejected because he failed to disclose criminal convictions for serious offenses, the Fifth Circuit explained that, even assuming he properly briefed his disparate impact claim, he failed to show that the school district had a policy of completely barring employment for convicted felons. His disparate treatment claim failed because the comparator to whom he pointed had been convicted of a less serious offense and did not have the same extensive record as the plaintiff (Rogers v. Pearland Independent School District, June 28, 2016, Owen, P.). The plaintiff applied to be a master electrician with the school district on two occasions in 2011. The first time he applied, he completed a web-based application, in relation to which he consented to a criminal history background check. Though he signed a statement certifying that all information on his application was complete, he failed to disclose that he had previously been convicted on felony drug charges. The convictions were discovered in the background check and his application was rejected. The school district hired another African-American male who left within months. The plaintiff then applied a second time, this time disclosing his criminal convictions. He was again rejected and the district explained that it was because of his failure to provide truthful answers in his first application and because of the seriousness of his prior criminal offenses. Another African-American male was hired. The plaintiff filed suit under Title VII alleging race discrimination. The district court granted summary judgment, finding that he failed to make out a prima facie case and, alternatively, that he failed to show the proffered reason for rejecting his application was pretextual. Felony conviction was not automatic bar. Affirming, the appeals court first noted that the plaintiff did not properly raise his disparate impact claim on appeal because he only referred to it in an introductory sentence but did not brief it. Assuming he had adequately briefed it, the claim would still fail. While he claimed that the district had a policy of rejecting all applicants who have been convicted of a felony, the record showed that a felony conviction was not an automatic bar to employment. Moreover, the record showed that the district hired several employees who had felony and misdemeanor convictions. Consequently, the plaintiff failed to support his argument that the school district had a facially neutral policy that had a disparate impact on African-Americans. No prima facie disparate treatment claim either. Summary judgment was also affirmed against the disparate treatment claim because the plaintiff failed to make the prima facie showing that the school district hired someone outside of his protected class or otherwise treated him less favorably than others similarly situated. First, the school district hired another African-American male for the position for which the plaintiff was rejected. Second, the white male comparator offered by the employee was not similarly situated enough. The comparator failed to disclose a drug-related conviction on his 2010 job application, but he was convicted of a less serious offense. While a felony conviction was not an automatic bar to employment, the district did consider the seriousness of an applicant’s criminal record. The comparator was convicted in 1980 of delivery of marijuana and sentenced to 10 years of probation; there was no other conviction indicated. In contrast, the plaintiff was convicted of at least three drug crimes and had received much more severe sentences than 10 years of probation. Because the criminal records were not comparable, the failure to disclose their convictions was also not comparable.

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