Disparate impact occurs when:
- The employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and
- The employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity.
National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provide a basis for EEOC to further investigate disparate impact charges.
The Green Factors
A 1975 case involving a criminal record exclusion, Green v. Missouri Pacific Railroad, identified three factors (the “Green factors”) relevant to assessing whether a criminal record is job-related for the position in question and consistent with business necessity:
- The nature and gravity of the offense or conduct
- The time that has passed since the offense or conduct and/or completion of the sentence
- The nature of the job held or sought
EEOC Example of Arrest Records
Mervin and Karen, a middle-aged African American couple, are driving to church in a predominantly white town. An officer stops them and interrogates them about their destination. When Mervin becomes annoyed and comments that his offense is simply “driving while Black,” the officer arrests him for disorderly conduct.
No charges are filed, but the arrest remains in the police department’s database and is reported in a background check when Mervin applies with his employer of fifteen years for a promotion.
The employer’s practice is to deny such promotions to individuals with arrest records, even without a conviction, because it views an arrest record as an indicator of untrustworthiness and irresponsibility.
If Mervin filed a Title VII charge based on these facts, and disparate impact based on race were established, the EEOC would find reasonable cause to believe that the employer violated Title VII.
Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest, is relevant for employment purposes.
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Convictions Are a Different Story
By contrast, a record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas.
EEOC’s Best Practice Recommendation
As a best practice, and consistent with applicable laws, EEOC recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.
Disparate impact—a challenge, but certainly not your only challenge. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that whatever the agencies and courts throw in your way.
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