When we are hiring, we run a DMV (Department of Motor Vehicles) check on the applicants. If it shows a DUI (Driving Under the Influence) conviction five years or more in the past, we usually go ahead and hire the person. But if the DUI is within five years, we don’t hire the person. I’m wondering if this is discriminatory?—Miriam, HR Manager in Burbank
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For advice on this sticky question, we turned to Jared Callahan and Sandra Rappaport.
Jared: Yes, you’ve got to be very careful, because with an arbitrary cutoff, you could be discriminating. Your criterion for not hiring someone needs to be job-relevant. If you can say of the DUI, “our salespeople drive cars; we’re concerned about that,” then you have some job-relevancy grounds for turning down someone with a DUI conviction. But the five-year cutoff could arguably be considered either a long time or a short time. So instead of having such a concrete policy, I would suggest that you treat the DUI report on a case-by-case basis. That’s not as easy as a simple five-year rule, but it may save you some time in court.
Sandra: Certain convictions really are irrelevant to some jobs, and a bright-line rule barring anyone with a DUI conviction less than 5 years old might have a discriminatory effect on a certain group of people. On the other hand, that kind of conviction can be quite relevant in certain situations. If the person is going to be a driver, for example, the DUI conviction likely is relevant. But even in that situation, like Jared mentioned, you want to be careful. Other considerations related to a DUI conviction can come into play. For example, alcoholism is a protected disability under disability discrimination laws. If the person is an alcoholic or a recovering alcoholic, that alone should not be a basis for refusing to hire him or her. So there are all sorts of implications to deciding whether or not to hire someone based on the results of a DMV check. Ultimately, if you can do the balancing and you can say, “Using this standard is really justified in our case for the following reasons,” it’s probably OK. But the balancing is necessary. If you can’t give a legitimate justification for not hiring someone with a record of a DUI conviction, you can run into some trouble.
Jared Callahan is director of sales and marketing, for Employment Screening Resources in Novato.
Sandra Rappaport is a partner at the San Francisco office of law firm Hanson, Bridgett, Marcus, Vlahos & Rudy.