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Criminal records may impair employee discrimination cases

By Thomas M Lee

On December 3, 2013, the Court of Appeal recently held in Horne v. International Union of Painters and Allied Trades, District Council 16 that a person who alleged he was racially discriminated against by a prospective employer could not establish a prima facie case of racial discrimination because of his prior drug conviction.

The plaintiff in this case sued a labor union, for refusing to employ him as a union organizer alleging racial discrimination. At the time the labor union decided not to offer the plaintiff a position, it did not know of the plaintiff's criminal record, which under federal law made him ineligible for the position. The Court dismissed the case explaining that a plaintiff in a discrimination case must first prove that he is qualified for the job. Here, the plaintiff's criminal conviction disqualified him for the position, as such, no prima facie case could be established.

In applying the Court's analysis to other types of employment discrimination cases, it appears that employees with undisclosed criminal convictions may face significant hurdles in suing their employers for discrimination. For example, employers can allege that the employee's failure to provide their criminal history on their job application is an act of dishonesty justifying their termination or demotion even if the employer actually had other discriminatory motives behind the firing or demotion.

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