An employer’s use of a job applicant's criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964.
The U.S. Equal Employment Opportunity Commission (EEOC) has issued new guidance, urging employers to review their hiring policies to make sure they are not engaging in racial discrimination when they screen applicants based on any previous criminal history.
“National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin,” the EEOC guidance says. “The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.”
Is this a radical departure in hiring guidelines? Not at all, says Gail Heriot, professor of law at the University of San Diego – one of several experts we consulted on the issue.
“The EEOC has long taken the position that employers who reject job applicants on account of a prior criminal conviction may sometimes be in violation of Title VII,” Heriot said. “That position has been based on the controversial disparate impact theory of liability under which an employer may be held in violation of the law if its hiring qualifications have a disproportionate impact on women and minorities and it cannot demonstrate a business necessity for those hiring qualifications. Actual intent to discriminate is irrelevant.”
The EEOC’s recent guidance has been accompanied by increased enforcement activity against employers who hire employees for sensitive positions, such as security guard, and use prior criminal history as a screening tool. Brenda Smith, a law professor at American University, says the EEOC is simply using its authority to foster legal compliance and avoid unintended consequences as new socioeconomic trends emerge.
“Given the over two million individuals currently under correctional supervision, limiting employment opportunities because of past criminal convictions has a tremendous impact on the labor force, especially for individuals of color and low-income individuals who disproportionately face contact with the criminal justice system,” Smith said. “So, I think EEOC's clarification is a point of clarification given the many consequences of the practice both in terms of the impact of race and ethnicity and the impact on employment.”
As the EEOC becomes more aggressive on this point, a legal challenge should not be unexpected if a business finds itself facing federal sanctions because it declined to hire someone with a criminal record.
“To some extent, that challenge will depend on the plaintiff's particular argument, the job at issue, and what kind of discrimination is at issue,” said Marcia L. McCormick, a professor at the St. Louis University School of Law.
How can employers avoid EEOC litigation in response to their hiring criteria? Marina Angel, a law professor at Temple University, suggests employers only consider offenses for a limited time, if the conviction is for an offense specifically related to the job in question. Charles Shanor, a law professor at Emory University, says the easy answer is for employers to simply follow the EEOC guidance.
“The harder questions are whether following the guidance will serve employer business needs well and whether lack of EEOC claims will be offset by claims by others that they were discriminated against because others less qualified than them were hired, Shanor said. “As women and disabled job applicants will typically have much lower rates of criminal convictions, they may be likely plaintiffs in such cases.”
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