By: Neil L. Wojtal
On April 25, 2012, the EEOC issued new Guidance regarding hiring decisions made by employers based upon arrest and conviction records and how such decisions could violate Title VII. Title VII protects persons from discrimination based upon race, color, religion, sex or national origin. The EEOC determined that national data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. Therefore, the EEOC has determined that criminal record exclusion policies of an employer could lead to a Title VII disparate impact violation.
The two types of violations are:
1. A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin. This is known as disparate treatment liability.
2. An employer's neutral policy (e. g. excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity. This is known as disparate impact liability.
What can an employer do to make sure that they are in compliance with this Guidance?
Note that compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII. In addition, state and local laws or regulations are preempted by Title VII if they "purport to require or permit the doing of any act which would be an unlawful employment practice" under Title VII U. S. C. Sec. 2000e-7.
How does an employer protect his/ her company from violating Title VII?
The EEOC advises employers to adopt the following best practices:
"VIII. Employer Best Practices
The following are examples of best practices for employers who are considering criminal record information when making employment decisions.
Developing a Policy
In light of this Guidance, all employers are encouraged to review their policies concerning criminal convictions when hiring new employees or determining the continued employment of current employees.
To view the entire Guidance, go to:
To view frequently asked questions, go to:
To view the Uniform Guidelines on Employee Selection Procedures, go to:
The information contained in this document is intended for the sole purpose of providing general legal information and is not intended as legal advice of any kind. This information may not apply to your specific issue, therefore, do not act upon this information without consulting Zimmerman & Steber Legal Group, S. C. or another qualified attorney.
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