May 31, 2012

While using arrest and conviction records in employment and hiring decisions is not prohibited, courts and the EEOC have long recognized that this practice can be discriminatory due to the disproportionate rate of arrest and conviction for African-Americans and Hispanics.  The EEOC recently published guidance on the issue, which is briefly summarized below.
Title VII Liability
An employer using arrest or conviction records in making employment decisions can face two types of claims under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race: 
  1. Disparate Treatment - An employer covered by Title VII may be liable when it treats applicants and employees differently because of their race. For example, an employer may be liable for rejecting an African-American applicant based on a conviction, while hiring a non-African-American applicant who was convicted of a similar crime.  
  2. Disparate Impact - An employer covered by Title VII may be liable when it implements policies that appear neutral, but have the effect of disproportionately screening out racial minorities--a phenomenon referred to as "disparate impact." When an employment policy or practice has a disparate impact, the employer must, in order to avoid liability under Title VII, be able to show that the policy or practice is "job-related" and based on "business necessity." For example, a bank's policy to not employ tellers convicted of theft- or fraud-related crimes may have disparate impact. However, this will not result in Title VII liability, because the policy is "job-related" and serves a valid "business necessity."
Employer Best Practices  
In order to help avoid liability, employers should follow these best practices: 
  1. Employers should use the Uniform Guidelines on Employee Selection Procedures.
  2. In determining whether a criminal record should impact an employment decision, employers should consider at least: (1) the nature of the crime, (2) the time elapsed since the conviction, and (3) the nature of the job (the three Green factors). If an employer makes a decision to exclude a particular person, the employer should provide the individual an opportunity to demonstrate that the exclusion should not be applied due to the individual's particular circumstances.  
  3. Employers should eliminate blanket policies that exclude individuals based on any criminal record and should limit inquiries into an individual's criminal history to those offenses that are job-related.  
  4. Employers should be particularly wary of using arrest records (as opposed to conviction records) as a basis for employment decisions, because arrests are not proof of criminal activity and are often unreliable.  
  5. Employers should continue to comply with federal laws and regulations, even if compliance results in disparate impact. Compliance with a federal law or regulation is a defense to Title VII liability.  
  6. Employers should accurately record the reasons and processes used to arrive at the decision to exclude an individual from employment consideration. 
If you have any questions about the EEOC Guidance, or any other employment-related issues, please contact a member of Ahlers & Cooney's Labor and Employment Practice Group.
Ahlers & Cooney's Labor and Employment Law Practice Group


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