Written By ESR News Blog Editor Thomas Ahearn
A decision by the Hawaii Supreme Court in the case Shimose v. Hawaii Health Systems Corp., No. SCWC-12-0000422 (Jan. 16, 2015) helps to define “ban the box” laws that restrict the scope and timing of permissible investigations into the criminal history of job applicants. The decision is available at http://www.esrcheck.com/file/Shimose_v_Hawaii_Health_Systems_Corp.pdf.
Hawaii’s “ban the box” law – Hawaii Revised Statutes (HRS) § 378-2.5 (Supp. 2007) – allows employers to consider the criminal conviction history of job applicants and also allows them to deny employment based on an individual’s conviction record “provided that the conviction record bears a rational relationship to the duties and responsibilities of the position.”
The plaintiff (Shimose) in the case was convicted of a felony drug charge in 2001. He earned a bachelor’s degree in prison and enrolled in a radiological technician (“radtech”) program at a college after leaving prison. After graduating with an Associate’s Degree, he applied for radtech positions at the defendant’s medical facility but was rejected because of his drug conviction.
The plaintiff filed suit against the defendant (HHSC/HMC) in the circuit court alleging violations of HRS § 378-2 and article I, section 5 of the Hawaii Constitution. The defendant asserted that:
- Radtechs treat vulnerable patient groups including children, geriatrics, and disabled patients.
- Many patients receiving treatment are in compromised physical and mental states and/or are receiving pain medication.
- Radtechs are often alone and unsupervised when imaging patients.
- Radtechs have access to patient charts that disclose what medications a patient is receiving.
- Radtechs have access to an array of drugs that are not readily available to the public, as well as related supplies such as syringes and needles.
The plaintiff disputed several of the defendant’s assertions including that radtechs had access to controlled substances or areas where they were kept. He also asserted that radtechs did not have greater access to vulnerable patients than visitors and that the level of contact with these patients was equal to other professions. Also, radtechs were not often alone with vulnerable patients.
The circuit court ruled in favor of the defendant. The Hawaii Supreme Court reviewed the circuit court’s decision in the case and found:
HRS § 378-2 states: “It shall be an unlawful discriminatory practice . . . [f]or any employer to refuse to hire or employ . . . any individual . . . [b]ecause of . . . arrest and court record[.]” However, HRS § 378-2.5 allows an employer to disqualify a job applicant based on his or her history of conviction, “provided that the conviction record bears a rational relationship to the duties and responsibilities of the position.” The issue in this case is whether, as a matter of law, HHSC/HMC established a rational relationship between Shimose’s conviction for possession with intent to distribute crystal methamphetamine and the duties and responsibilities of a radiological technician at HMC. We hold that it did not.
The Hawaii Supreme Court examined the core duties of a radtech and found:
There is no indication that radtechs at HMC administer or even assist patients with any type of drugs. A felony drug conviction simply has no bearing on an individual’s ability to perform the primary imaging duties of a radtech at HMC. Accordingly, there is no rational relationship between Shimose’s drug conviction and the core duties of a radtech at HMC that would have entitled HHSC/HMC to disqualify Shimose from prospective employment.
The Hawaii Supreme Court also examined the relationship between the plaintiff’s felony drug conviction and the risk to vulnerable patients and found:
If HRS § 378-2.5 extended so broadly that any contact with the elderly or young children created a rational relationship to a prior drug conviction, then all individuals with prior drug convictions could be disqualified from any job that dealt with the public at large. But drug convictions often have nothing to do with elder/child abuse, and should not serve as a blanket disqualification from employment that requires a modicum of interaction with children and the elderly.
The Hawaii Supreme Court found that the employer did not establish job-relatedness and concluded “the circuit court erred when it granted HHSC/HMC’s motion for summary judgment with respect to Shimose’s statutory claim.” With regard to “Ban the Box,” the case Shimose v. Hawaii Health Systems Corp. is an example of when a criminal record is found to be not job-related.
“Ban the Box is a developing area of law and what this case stands for is the fact that an inquiry relating a criminal conviction to a job is very fact specific,” said Attorney Lester Rosen, founder and CEO of background check firm Employment Screening Resources (ESR). “The case underscores the need for employers to carefully draft job descriptions and not just have a knee-jerk reaction to the nature of the crime.”
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