EEOC Guidance on Criminal Records and Disproportionate Treatment
by
Joseph C. Maya on Jun. 21, 2017
Employment Employment Discrimination Employment
Summary: A blog post about how employers can avoid violating ant-discrimination statutes when evaluating prospective employees who have criminal records.
Contact the experienced employment law attorneys at Maya Murphy, P.C. today at (203) 221-3100 or JMaya@Mayalaw.com
The EEOC enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII). Title VII prohibits employment discrimination – including hiring discrimination – based on race, color, sex, religion, or national origin. However, glaringly missing from this list is a prohibition of discrimination based upon a prior criminal record.
However, despite its lack of presence in the statutory language itself, the EEOC has interpreted discrimination based upon a criminal history to fit under Title VII’s purview. Excluding people from employment due to criminal records may raise issues under Title VII, especially if it disproportionately harms people of a particular race or national origin. To substantiate exclusion, the employer must show that its policy is necessary in light of the nature and gravity of the offense or offenses for which the applicant was convicted; the time that has passed since the conviction and/or completion of the sentence; and the nature of the job held or sought.
If an employer indicates that a prospective employee may not be hired because of their criminal record, the EEOC has taken the position that the employee should have an opportunity to provide more facts before the employer makes a final decision. Information about the employee’s prior, successful employment or participation in job training programs may demonstrate the knowledge, skills, and abilities of the employee that would outweigh the past criminal history. Similarly, information about an employee’s social support in the community, or from personal references may demonstrate that they will have the support necessary to be a reliable worker. EEOC Informal Discussion Letter, March 10, 2014.
It is important for an employer to understand that while discrimination based upon past criminal convictions or prior criminal records may not be explicitly addressed under the statutory language of Title VII, the EEOC has found violations of Title VII for employers which have policies regarding past criminal records which disproportionately harm those in a protected class. Employers should review all existing policies and ensure that they rely upon EEOC interpretations of ant-discrimination laws when drafting and creating new and updated policies.
If you are an employer and are faced with an employee claim of discrimination under Title VII, or are facing a claim under jurisdiction of the EEOC, contact the experienced employment law attorneys today at 203-221-3100, or by email at JMaya@mayalaw.com. We have the experience and knowledge you need at this critical juncture. We serve clients in both New York and Connecticut including New Canaan, Bridgeport, White Plains, and Darien.
Source: eeoc.gov
