Understanding Disparate Treatment Under Title VII – Criminal Records
Understanding Disparate Treatment Under Title VII In the Consideration of Criminal Records : Fair Chance Act – Part 5
In 2012, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance related to the use by employers of information about an applicant’s criminal record when making hiring decisions (the “Guidance”). This Guidance consolidated and updated the EEOC’s long-standing policies regarding the use of such information and reminded employers that convictions and other criminal records cannot be used in a discriminatory manner.
Included in the Guidance was an updated and expanded explanation of the two standards used to assess an employers’ liability for discrimination under Title VII of the Civil Rights Act of 1964: disparate treatment and disparate impact. An employer’s ability to defend against a claim of discrimination depends on which of these two standards applies.
What is the EEOC’s disparate treatment standard?
Described in Part IV of the Guidance, disparate treatment refers to overt acts of discrimination.
Sometimes called intentional discrimination, these are the policies and actions of an employer that are discriminatory by design.
As the Guidance explains, an employer violates Title VII of the Civil Rights Act of 1964 if that employer treats a job applicant or employee differently because of that person’s race, color, religion, sex or national origin.
According to the Guidance, biased statements made by managers or supervisors, different treatment of similarly situated applicants, and comparative data gleaned from the employer’s records are among the types of evidence that may be used evidence to prove discrimination through disparate treatment.
What does disparate treatment in relation to the consideration of criminal records look like?
Determining when an act of intentional discrimination has occurred is a fact-specific inquiry. With regard to the consideration of criminal records, discrimination may occur when an employer relies on race- or ethnic-based stereotypes related to criminal behavior. Discrimination may also occur when an employer fails to consistently apply the same policy with regard to criminal background checks to all similarly situated employees or applicants.
For example, if an employer only requires criminal history background checks for all applicants of a specific race or religion, this employer is engaging in a discriminatory practice.
Additionally, if between two similarly situated candidates with criminal backgrounds the one who belongs to a protected class is rejected on the basis of his or her criminal background while the other candidate is not the employer may be liable. This type of behavior points to the possibility that the applicant’s criminal background is being used to facilitate the employer’s bias.
Sometimes, an employer’s misuse of criminal conviction histories is evidence of a broader pattern of disparate treatment of a protected class. Such is alleged to be the case, in a 2017 complaint filed by the EEOC against Diversified Maintenance Systems, LLC. One count of the EEOC’s complaint against Diversified alleges that the company sought to reduce the number of African Americans applying to work with the company “repeatedly emphasizing to them that the company performed a criminal background check.”
Of course, background checks are a common requirement for many jobs and the decision to require them is not what left this company vulnerable to a claim of discrimination. Instead, it was the different treatment of applicants–the company didn’t emphasize its screening policy to non-African American applicants–that is the basis of the EEOC’s claim.
Avoid liability with clear and equally applied policies
To prevent liability under Title VII, employers should treat all employees and job applicants equally. And, as the EEOC Guidance and enforcement actions make clear, this fair and equal treatment applies to the request and consideration of criminal records. Policies concerning the request and use of criminal histories should be clear and communicated to all hiring managers and supervisors.
By understanding the rules, employers can continue to employ criminal history background checks and gain valuable information before making a fair hiring decision.