Not Hiring Those With Criminal Records Can Put You in Hot Water

The Equal Employment Opportunity Commission (EEOC) is becoming more aggressive in pursuing employers that have blanket bans excluding those with criminal records from jobs, as reported in the New York Times today. Many employers are not ready for this aggressive enforcement of EEOC policy, as the New York Times found, and are not educated on what actions can put them into hot water.
The EEOC issued a guidance in late April clarifying what actions it would consider to be unlawful discrimination against those with criminal records. While no federal law directly prohibits discrimination against people with a criminal record, employers may still be liable if their discrimination runs into one of the prohibitions against race, sex, or national origin discrimination. The way this can happen is if employers in discriminating against those with criminal records also discriminate against those within these protected classes. The main example for this case is race. The EEOC in its guidance clarified how employers by discriminating against those with criminal records may be found liable for race discrimination under Title VII of the Civil Rights Act of 1964.
The EEOC will pursue actions against employers who exclude all those with criminal records based on two theories of antidiscrimination law, disparate treatment and disparate impact. Under disparate treatment, an employer may be found liable for discriminating against those with criminal records if they use that as a cover up to discriminate based on race. One way this can occur is if an employer has a blanket ban on hiring those with any criminal record but only applies that ban when the prospective employee is Hispanic, for example. This example is mostly uncontroversial, and few employers seem confused that this action would be discrimination.
The second theory under which the EEOC will pursue employers that discriminate against those with criminal records is a bit more complicated, however. This is based on the disparate impact theory of antidiscrimination law, codified under Title VII of the Civil Rights Act of 1964. Disparate impact makes employers liable for discrimination, even if the intent was not to discriminate if the end result is the same. Disparate impact attempts to “smoke out” unlawful discrimination that would otherwise be difficult to prove. In the case of those with criminal records, a blanket ban by employers to exclude all those with records from a job may just be a cover up for an attempt to weed out those of certain minority groups. Especially due to the disparate contact different groups have with the law – for example, Hispanics and African Americans are arrested and charged for crimes at much higher rates than White Americans – such a ban for certain jobs may effectively work as a screener for certain racial groups. The EEOC noted this in its guidance, and stated that because of the racial disparate impact that bans or other restrictions on employment for those with criminal records may have, they will be found to be presumptively prohibited under the antidiscrimination laws.
What this EEOC position means for employers is that most restrictions and exclusions of workers based on their criminal records will need to be shown to be job-related and consistent with business necessity to survive. Even if employers can show that their restrictions are so, they will also have to prove that there was no other alternative that would have less of an impact protected groups. The EEOC in its guidance outlined which kinds of restrictions would probably be found to be valid under this test. For example, a ban on convicted sex offenders from working at an elementary school would probably be fine, as screening for such offenses is relevant for safety reasons. A ban on convicted sex offenders from working in a factory, however, would be scrutinized to see whether it is necessary to obtain some business objective. Likewise, a ban on people convicted of embezzlement would probably be fine for a bank to have, but for a dishwasher position where the worker would have no contact with money, it would probably be seen to go too far.
The EEOC in its guidance has made clear that it will look carefully at every restriction on the hiring of those with criminal records and will force employers to show a high degree of fit between their restriction and their business needs. The agency has already begun investigating hundreds of cases under its new guidance, and is sure to pursue hundreds if not thousands more in the coming years. Many employers in response have decided to avoid the hassle of possible prosecution by doing away with questions about criminal records from their applications altogether, just to avoid liability, and only asking relevant questions from the final pool of qualified applicants. While this may seem a drastic measure, the nature of the response to this EEOC guidance may be a sign that those employees who’ve faced unlawful discrimination due to restrictions on those with criminal records may finally find relief under the antidiscrimination laws.

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