Business Sued for Dismissing Convicted Sex Offender

Court rules that private corporation was not prohibited from dismissing employee.

Church Law and Tax 1997-03-01

Employment Practices

Key point. State laws encouraging employers to hire convicted felons do not prevent employers from dismissing or refusing to hire such persons, especially when their criminal background makes them a threat to others.

A Washington state court ruled that a state law declaring it to be the policy of the state to promote the rehabilitation of felons and assist them in securing employment did not prohibit a private employer from dismissing an employee on the basis of his criminal conviction. An employee of a business corporation was charged with three counts of felony child molestation. The employee was convicted of a lesser offense, and sentenced to twelve months in prison, with ten months suspended, one month converted to 240 hours of community service, and one month of actual jail time to be served on weekends. When the employer found out about the conviction, it dismissed the employee. The employee later sued the employee for wrongful discharge. He claimed that his dismissal violated a strong public policy of rehabilitating felons who have “paid their debt to society.” A trial court rejected the dismissed employee’s claim, and the case was appealed. A state appeals court agreed with the trial court that the dismissed employee could not sue his former employer for wrongful discharge. It noted that the employee had been an “at will” employee, meaning that he had been hired for an indefinite term and that either he or his employer could terminate the employment relationship “at will” and with or without cause. The court acknowledged that “at will” employees may sue their employers for wrongful discharge if they are dismissed in violation of some strong public policy. However, the court concluded that the state’s policy of rehabilitating felons was not such a policy, since it applied only to government employers.

This is an important decision. It protects the right of churches, like any private employer, to dismiss employees who are convicted of crimes and to refuse to hire persons who have been convicted of crimes in the pastdespite the existence of a state policy that encourages employers to hire convicted felons. Further, the Washington statute was limited to government employers, and contained a provision permitting discrimination by such employers against a convicted felon “if the felony for which he or she was convicted directly relates to the position of employment sought … and the time elapsed since the conviction is less than ten years.” Selix v. Boeing Company, 919 P.2d 620 (Wash. App. 1996). [ Negligent Selection]

Key point. The Washington statute that prohibits government employers from discriminating against convicted felons in employment decisions solely on the basis of a prior conviction permits discrimination against felons who have been convicted of a crime that directly relates to the position of employment that is soughtbut only if the crime was committed within the past ten years. Churches that are sued for negligent hiring may be able to rely on this statute in their defense. To illustrate, if a church is sued because of injuries inflicted by a person who was convicted of a similar crime more than ten years ago, the church could argue on the basis of the Washington statute that evidence of criminal behavior more than ten years in the past is not relevant in making employment decisions. Of course, it is by no means certain that a court would accept this defense, and many courts have found employers guilty of negligent hiring for hiring a convicted felon whose conviction occurred more than ten years ago. The safest course for church leaders to take is to recognize that some forms of criminal conduct should permanently disqualify a person from consideration as either an employee or volunteer worker. The most significant example is pedophilia, or sexual contact with a preadolescent minor. Since medical authorities largely agree that such a condition is incurable, a church assumes a substantial risk in hiring a person with a prior conviction for this type of crime, even if it occurred more than ten years ago.

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