Today’s Wall Street Journal features an article about the difficulties faced in finding jobs by those who have convictions in their past. Many jobs are prohibited for ex-convicts under various state laws. But in some states there is a process for granting exemptions from these restrictions.
For those in companies who are trying to do the right thing, we face a system that seems to be at war with itself. On the one hand, the EEOC goes after companies for not hiring those who have been convicted because this has a disparate impact. On the other hand, the legal system holds companies accountable if they hire someone who then causes harm, under the doctrine of negligent hiring. So in the states that provide rehabilitation, one of the important developments is to include in the law immunity from liability for negligent hiring.
One lesson for compliance professionals is not to accept the legal system’s attempt to slam companies for trying to do the right thing. If the EEOC and the legal system want us to take a certain direction, then we need to push for a system that makes sense. If we are expected to take a chance in hiring ex-convicts who have been rehabilitated, then we should be demanding that the system be fixed. We should not be condemned in litigation for trying to do what another part of the government is telling us to do. Conducting background checks to prevent negligent hiring should not be an invitation for the EEOC to sue companies, and hiring convicts whom the state has decided are rehabilitated should not be an invitation for others to sue us for negligent hiring.