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September 04, 2014 Articles

Fair Hiring Initiatives to Curb Disparate Impact Discrimination

By Nikki Odom

Recently, there has been a renewed focus on disparate impact, a theory of discrimination under Title VII of the United States Civil Rights Act of 1964. Originally recognized in the 1970s, the resurgence of disparate impact liability is likely attributable to increased efforts by states, cities, and the Equal Employment Opportunity Commission (EEOC) to remove unfair barriers to employment, particularly job rejections and terminations for criminal arrests and convictions.

Disparate impact occurs when a facially neutral employment policy or practice disproportionately impacts individuals protected under Title VII in an adverse way. Unlike other discrimination theories, discriminatory intent is not required. An employer may avoid liability if it can demonstrate that its neutral employment policy is job-related and consistent with business necessity.

Courts and the EEOC, the agency charged with enforcing Title VII, have long recognized that some employer criminal background check policies may have a disparate impact on certain races of individuals and thereby violate Title VII. According to the EEOC, this is especially true of policies that require automatic rejections of applicants with criminal convictions. In recognition that employer criminal background check policies can prevent applicants, sometimes qualified applicants, from obtaining jobs, 12 states and several cities have enacted "ban the box" laws. "Ban the box" laws prohibit employers from inquiring about criminal record convictions until later in the hiring process by requiring that employers remove questions about an applicant's criminal record history from their job applications.

In its own effort to eliminate unlawful discrimination in employment screening and hiring pursuant to its 2013–2016 Strategic Enforcement Plan, the EEOC issued "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964" in April 2012. According to the EEOC's guidance, statistical data demonstrates that excluding job applicants or job candidates based on their criminal or arrest records has had a disparate impact on certain protected classes, namely African American and Hispanic job applicants. The issuance of the EEOC's guidance signaled the agency's focus on employer criminal background check policies.

To avoid liability for criminal background screening policies and procedures, the EEOC guidance discourages employers from implementing bright-line rules in their hiring practices, such as refusing to hire any applicant or candidate who has a criminal felony conviction. However, the EEOC recognized that certain convictions would automatically exclude prospective employees from particular positions due to federal statutory or regulatory requirements. State statutory or regulatory requirements may also exclude prospective employees from certain positions if those requirements are job-related and consistent with business necessity. For example, it may be acceptable for an employer to refuse to hire someone who was convicted of fraud or embezzlement for a position in its finance, treasury, or accounting departments. Similarly, it is unlikely that a child care facility would face an objection from the EEOC for failing to hire someone who had committed a crime against a child.

According to the guidance, employers can demonstrate that their criminal record screening policies and practices are job-related and consistent with business necessity if the employer conducts a targeted criminal background screen and an individualized assessment of each candidate's criminal record in relation to the position for which that candidate has applied. In particular, the EEOC guidance encourages employers to develop a targeted criminal background screen that takes into account:

  • the nature of the candidate's crime,

  • the time elapsed between the crime and the job application, and

  • the nature of the job in which the candidate applied.

The factors that comprise the targeted criminal background screen are known as the "Green factors," in reference to Green v. Missouri Pacific Railroad Co., 523 F.2d 1290 (8th Cir. 1975). After the targeted screen identifies applicants for rejection, the EEOC encourages employers to take an additional step and perform an individualized assessment for the individuals who were screened out. The purpose of the individualized assessment is to ensure that qualified applicants were not rejected based on inadequate or inaccurate information.

Critics of the EEOC's criminal background check crusade argue that the agency has yet to explain the "Green factors" in clear, practical terms. Critics further argue that the agency's guidance has placed employers in an unjustifiable position. Employers are now faced with a situation in which they must choose between overlooking a prospective employee's criminal history and thus risking liability for negligent hiring practices, or protecting current employees and company assets and thus risking having to defend itself against the EEOC.

Despite the EEOC's enthusiasm for pursuing employers for disparate impact discrimination, the agency has faced some setbacks. Recent court decisions demonstrate that the EEOC has repeatedly failed to present reliable statistical evidence in support of its criminal record discrimination cases. See EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749 (6th Cir. 2014); EEOC v. Freeman, 961 F. Supp. 2d 783 (D. Md. 2013). Decisions in two high-profile cases may determine if the EEOC is able to prove that its theory that criminal background checks have a disparate impact on certain protected classes is more than conjecture. See EEOC v. BMW Mfg. Co. LLC, No. 7:13-cv-01583 (D.S.C. June 11, 2013) ;EEOC v. DolGenCorp LLC, No. 1:13-cv-04307 (N.D. Ill. June 11, 2013). Employers are also awaiting decisions in these cases in the hope that they will provide much-needed clarity when interpreting and applying the EEOC's guidance.

Keywords: minority trial lawyer, litigation, "ban the box" laws, criminal background check, disparate impact discrimination, EEOC, Title VII

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