The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions. National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The Guidance discusses disparate treatment and disparate impact analysis under Title VII.Ī violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).Īn 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 (disparate impact liability). In certain circumstances, however, there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.
In contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. The fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. The Guidance discusses the differences between arrest and conviction records. The Introduction provides information about criminal records, employer practices, and Title VII. The Guidance focuses on employment discrimination based on race and national origin. Equal Employment Opportunity Commission (Commission or EEOC) issued over twenty years ago. The Guidance builds on longstanding court decisions and existing guidance documents that the U.S.
Examples of Criminal Conduct Exclusions that Do Not Consider the Green Factors.The Time that Has Passed Since the Offense, Conduct and/or Completion of the Sentence.The Nature and Gravity of the Offense or Conduct.Detailed Discussion of the Green Factors and Criminal Conduct Screens.Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity.Job Related for the Position in Question and Consistent with Business Necessity.Determining Disparate Impact of Policies or Practices that Screen Individuals Based on Records of Criminal Conduct.Disparate Impact Discrimination and Criminal Records.Disparate Treatment Discrimination and Criminal Records.The EEOC's Interest in Employers' Use of Criminal Records in Employment Screening.Employers' Use of Criminal History Information.Questions and Answers About the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII What You Should Know About the EEOC and Arrest and Conviction Records
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