- 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.
- 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."
- Employers should use the Uniform Guidelines on Employee Selection Procedures.
- 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.
- 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.
- 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.
- 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.
- Employers should accurately record the reasons and processes used to arrive at the decision to exclude an individual from employment consideration.
About Ahlers and Cooney's Client Alerts
Our Client Alerts are intended to provide occasional general comments on new developments in Federal and State law and regulations which we believe might be of interest to our clients. The Client Alerts should not be considered opinions of Ahlers & Cooney, P.C., and are not intended to provide legal advice as a substitute for seeking professional counsel. Readers should not under any circumstance act upon the information in this publication without seeking specific professional counsel. Ahlers & Cooney will be pleased to provide additional details regarding any article upon request. Additional copies of this Client Alert may be obtained by contacting any attorney in the Firm or by visiting the Firm's website at www.ahlerslaw.com.
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