February 27, 2015

LOWES WINS SUMMARY JUDGEMENT ON APPLICANT’S CHALLENGE ON EXCLUSION BASED ON CRIMINAL BACKGROUND CHECK

The case is Williamson v. Lowe’s, decided on 2/24/15 by Judge Susan Oki Mollway of the District Court of Hawaii [2015 U.S. Dist. LEXIS 13170].  The case was decided under Hawaii State Law (Section 378-2 of the Hawaii Revised Statutes).  Williamson applied online for a receiver/stocker position at Lowes and was given a conditional job offer pending a drug test and background check.  The background check revealed that Williamson served 5 years in prison for felony assault in 1998 and that he served 20 days in jail for a conviction of harassment in 2004.  The law in question states it is illegal to deny employment because of “arrest and court record” for a prior 10-year period. However, it contains the caveat that employment may be denied if “the conviction record bears a rational relationship to the duties and responsibilities of the position.”

Lowes argued that a receiver/stocker “is responsible for working at an efficient pace to stock shelves in various departments across the store” and that “[s]ince there is a very large amount of merchandise to stock on the store shelves and a limited amount of time and manpower to achieve the task, each step in the process is time-sensitive and team work is required to complete the work each shift.” Lowe’s also argued that a receiver/stocker must be “a team-oriented individual” who has the ability to communicate with supervisors, managers, and other employees in a courteous manner and, therefore, there is a rational relationship between Williamson’s convictions and the job requirements. judge Mollway accepted this argument and ruled:

The need for someone who has convictions for crimes of violence to remain polite and professional while under pressure is at the center of the relationship Lowe’s drew between Williamson’s convictions and the Receiver/Stocker position. That relationship is neither remote nor attenuated. It requires no stretch of the imagination to see the potential connection between the convictions and job circumstances likely to present time and interpersonal stresses.

Williamson’s lawyer argued that all positions require these considerations and, therefore, Williamson could be excluded for any job.  Judge Mollway discounted this argument suggesting “A delivery truck driver, for example, would likely spend more time alone and interact with others less frequently than a Receiver/Stocker”

This was not a race case, but if it was, and if the case was brought under Title VII, one wonders whether the EEOC would take such a case and how it would fare in court.

By Art Gutman, Ph.D., Professor, Florida Institute of Technology

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