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April 3, 2013 10:22:55 AM
The Columbus City Council approved a motion by Ward 5 Councilman Kabir Karriem to stop the city's practice of disqualifying job applicants with felonies during its meeting Tuesday.
The proposal also included forming a committee to establish screening policies that will allow for past incarceration to be considered when reviewing city job applicants, but would not be the sole determining factor as to whether or not someone is hired. The committee is to present its recommendations at the next council meeting on April 16. The committee will consist of Karriem, Ward 1 Councilman Gene Taylor, Chief Operations Officer David Armstrong, Human Resources Director Patricia Mitchell and City Attorney Jeff Turnage.
The lone dissenting vote in the 5-1 decision came from Ward 6 Councilman Bill Gavin.
Turnage cited a report from Jackson-based attorney Mark Fijman, stating that the U.S. Equal Employment Opportunity Commission's (EEOC) position is that exclusion of employment consideration based on criminal history may violate Title VII of the Civil Rights Act, which prohibits employment based on race, religion, gender and national origin. Turnage said the city's current ban has the potential to have a discriminatory impact on minorities and could result in legal action from EEOC if the ban is not removed.
"The reason for that is because statistically, minorities ... are more likely to have a felony conviction than whites," Turnage said.
EEOC guidelines dictate that for an employer to avoid Title VII liability for excluding applicants based on their criminal records, the employer must show it considered three factors when reviewing the qualifications of a potential hire -- the nature and gravity of the offense, the amount of time since the conviction and the relevance of the offense to the type of job in question.
There is no law that prohibits the consideration of criminal convictions in making employment decisions, and the EEOC has lacked binding authority since Congress passed the Civil Rights Act.
"However, employers have little choice but to take seriously this latest position of the EEOC, because the guidelines expressly note that the EEOC will use its enforcement authority to investigate cases of disparate impact related to criminal background check policies," Fijman stated in his report. "In this instance, the threat of a liability, or at least the threat of costly litigation, is not hypothetical."
Both Karriem and Turnage said while the committee works on a screening policy, the city needed to immediately cease judging applicants based on their background to avoid legal action.
"I know some members up here may feel this is a very controversial issue, particularly because we're in an election season," Karriem said. "The more important thing we have to all consider: Is it the right thing to do and does it protect the city? It's a ruling that's been given and now it's up to us to do what we have to do to protect the city of Columbus."
Gavin questioned the need to repeal the no-felony stipulation immediately, asking if the city planned to hire applicants with a felony between passing the motion and putting a screening policy in place. Turnage said the EEOC could initiate legal action at any time.
"Now that we've had it on our policy agenda and (are) talking about it in open session, I think it is rather dangerous to continue with it, even for a short period of time," Turnage said.
"Will we also open ourselves up (to a potential lawsuit) if we hire a felon and then, later on, the person who works for the city commits another felony?" Gavin asked. "How does the city then respond?"
"You do open yourself up to a suit on both sides of it," Turnage replied. "You're on a razor's edge with it, and that's the difficulty."
Mayor Robert Smith spoke in support of Karriem's motion.
"I think it's a proactive approach to come into compliance with the EEOC guidelines," Smith said.
"We need to look at second chances," Karriem added. "Some folks have had problems 20, 30 years ago and still have issues with getting employment."
Ward 3 Councilman Charlie Box initially said he would not support the motion, expressing concern about the two-week interim period it would take for the committee to develop the screening policy. Smith said within that time frame the city would not hire anyone with a felony.
Nathan Gregory covers city and county government for The Dispatch.
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