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Incarcerated Applicant Sues Maine Attorney General for Discrimination

December 12, 2014

Employers must ensure they do not discriminate against applicants who have a criminal record. Employers may violate Title VII of the Civil Rights Act of 1964 by excluding an applicant because of his criminal history unless the decision is job-related and consistent with business necessity. The Maine Attorney General (AG) Office clearly met that burden when it decided to pass on a disabled applicant who was incarcerated at the time he applied for a paralegal position.

Just the facts

Clifford Schuett applied for a paralegal position at the AG office, and he was offered the job. After the AG office offered Schuett the job, he informed it of two facts. First, he is a paraplegic. Second, he is a convicted felon who was in prison at the time. To the surprise of no one other than Schuett, the AG withdrew the job offer. Schuett sued under the Americans with Disabilities Act (ADA), alleging that the AG decision to withdraw the job offer was motivated by the fact that he is a paraplegic.

Legal technicalities

Before addressing the merits of the Schuett claim, the court dismissed the lawsuit because individuals cannot sue the government under the ADA. Generally, the government enjoys sovereign immunity, which means individuals are not allowed to sue it unless an exception applies. Importantly, not only was Schuett not allowed to sue the state, but he also was not allowed to sue the governor or the AG as individuals because the ADA allows only employer liability, not individual liability.

Next, the court dismissed any claims Schuett had under Title VII. States are not immune from Title VII claims, but Title VII prohibits employment discrimination only on the basis of "race, color, religion, sex, or national origin." Therefore, Schuett could not use Title VII to advance his disability discrimination claim.

On the merits

The court dismissed the Schuett lawsuit because it did not meet the legal requirement of "stating a claim," so we are left to speculate how the court would have decided the case on the merits. We would like to think that an employer acts reasonably by deciding not to hire an applicant who is behind bars. When considering whether an employer decision to exclude an applicant meets the requirement of being a business necessity, courts consider the following factors:

  1. The nature and gravity of the offense;
  2. How much time has passed since the offense or the completion of the sentence; and
  3. The nature of the job held or sought.

In this case, the AG office went three for three. Schuett is a convicted felon,no time had passed between the end of his sentence and his application, and he applied for a legal position with the state. Since the AG had a legitimate nondiscriminatory reason for refusing to hire Schuett, his disability discrimination claim would have likely failed on the merits as well. Schuett v. Maine Attorney General.


If an applicant reveals that he is disabled during an interview and he is not hired, it can raise suspicions that he was discriminated against. That is why employers should not seek to elicit information about membership of an applicant in a protected class during an initial interview. In this case, the employer had a legitimate reason for refusing to hire an incarcerated applicant. The applicant could not argue that it was discriminatory for the AG to refuse to hire an inmate for a sensitive legal position.

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