No Obligation to Conduct Background Checks in 5th Circuit
Author: David B. Weisenfeld, XpertHR Legal Editor
The Fifth Circuit Court of Appeals has held that an employer cannot be liable for hiring a violent felon without conducting an employee background check.
In Keen v. Miller Environmental Group, Inc., employee Rundy Robertson allegedly raped co-worker Deborah Keen. A grand jury declined to indict Robertson, but Keen sued the company for violating its own internal policy to conduct background checks on all new hires.
Robertson had a lengthy criminal record, including convictions for cruelty to a child in the first degree and robbery as well as previous charges for sexual battery and forcible rape. As part of his application, Robertson submitted a signed consent for the employer to conduct a background check. He also falsely stated that he had no criminal history.
In her negligent hiring lawsuit, Keen argued that Mississippi law imposed a duty on employers to conduct background checks within the circumstances of this case, something the company failed to do.
While Mississippi's legislature has required that employers conduct criminal background checks on all new hires within certain fields, the Fifth Circuit decided there was no such duty on the employer here. The appeals court explained that nothing about the nature of Robertson's job - to remove tar balls from the Gulf Coast - could have suggested that he was likely to subject Keen to the risk of assault.
Texas employment attorney Mark Levine calls this decision "very significant." According to Levine, who practices within the Fifth Circuit with Weycer Kaplan in Houston, a contrary result would have created troubling liability concerns. "Recognizing a duty to conduct background checks would create unworkable barriers for employers," said Levine. And that's not all.
Civil Rights Concerns
Levine adds that placing a duty on employers to conduct background checks would be bad public policy because they might simply bar violent felons from working to avoid any possible litigation. Under that approach, he says, "Violent felons would have no conceivable opportunity to rejoin civil society and the chance of recidivism would no doubt increase."
It is still good practice for employers to conduct background checks, according to Levine. But as EEOC guidance dictates, he advises employers to conduct an individualized assessment of a candidate's qualifications and allow that person to explain why a past conviction should not disqualify them.
The Texas attorney says he would suspect the employer wishes it had run the background check on Robertson and never hired him despite its victory in the litigation.
Additional Resources
Recruiting and Hiring > Preemployment Screening and Testing > Background Checks