EEOC has released guidance on the use of arrest and conviction records in screening job candidates. Many employers do subject job candidates to criminal background checks to combat theft and fraud, and to avoid workplace violence. But the EEOC sees the possibility of discrimination.
That’s because arrest and incarceration rates are particularly high for African American and Hispanic men. And that can lead to a finding of disparate treatment or disparate impact if applicants are turned away on the basis of an arrest or conviction.
The full title of the new guidance is Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
Disparate Treatment Discrimination
A covered employer is liable for violating Title VII when the applicant demonstrates that the employer treated the applicant differently because of his or her race, national origin, or another protected basis.
For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.
EEOC Example of Disparate Treatment
John, who is White, and Robert, who is African American, are both recent graduates of State University. They have similar educational backgrounds, skills, and work experience. They each pled guilty to charges of possessing and distributing marijuana as high school students, and neither of them had any subsequent contact with the criminal justice system.
They both apply for employment with Office Jobs, Inc., which, after short intake interviews, obtains their consent to conduct a background check. Based on the outcome of the background check, which reveals their drug convictions, an Office Jobs, Inc., representative decides not to refer Robert for a follow-up interview. The representative remarked to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug dealer types” to client companies.
However, the same representative refers John for an interview, asserting that John’s youth at the time of the conviction and his subsequent lack of contact with the criminal justice system make the conviction unimportant. Office Jobs, Inc., has treated John and Robert differently based on race, in violation of Title VII.
EEOC’s take: Title VII prohibits “not only decisions driven by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking . . . .” Thus, an employer’s decision to reject a job applicant based on racial or ethnic stereotypes about criminality—rather than qualifications and suitability for the position—is unlawful disparate treatment that violates Title VII.
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Types of Evidence of Discrimination
There are several kinds of evidence that may be used to establish that race, national origin, or other protected characteristics motivated an employer’s use of criminal records in a selection decision, including, but not limited to:
- Biased statements. Comments by the employer or decisionmaker that are derogatory with respect to the charging party’s protected group, or that express group-related stereotypes about criminality, might be evidence that such biases affected the evaluation of the applicant’s or employee’s criminal record.
- Inconsistencies in the hiring process. Evidence that the employer requested criminal history information more often for individuals with certain racial or ethnic backgrounds, or gave Whites but not racial minorities the opportunity to explain their criminal history, would support a showing of disparate treatment.
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- Similarly situated comparators (individuals who are similar to the charging party in relevant respects, except for membership in the protected group). Comparators may include people in similar positions, former employees, and people chosen for a position over the charging party. The fact that a charging party was treated differently than individuals who are not in the charging party’s protected group by, for example, being subjected to more or different criminal background checks or to different standards for evaluating criminal history, would be evidence of disparate treatment.
- Employment testing. Matched-pair testing may reveal that candidates are being treated differently because of a protected status.
- Statistical evidence. Statistical analysis derived from an examination of the employer’s applicant data, workforce data, and/or third party criminal background history data may help to determine if the employer counts criminal history information more heavily against members of a protected group.
In tomorrow’s Advisor, disparate impact and criminal records, plus an introduction to the all-HR-in-one website that helps you avoid hiring mishaps (and all the other HR mishaps).