Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts

a. Consideration of Criminal Offender Record Information Under Title VII

Once an employer obtains an applicant’s criminal record, it must determine whether it will hire

the individual. However, a prospective employer should not automatically disqualify applicants

with criminal records. Rejecting all applicants with criminal records might disproportionately

impact individuals within a protected class and lead to a discrimination lawsuit against the

agency.

On April 25, 2012, the EEOC issued its Enforcement Guidance on the Consideration of Arrest

and Conviction Records in Employment Decisions under Title VII.

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While the EEOC will

continue its longstanding policy approach in this area, this new Enforcement Guidance provides

more in-depth analysis than the EEOC’s earlier statements.

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i. Arrests vs. Convictions

The fact of an arrest does not establish that criminal conduct has occurred. Arrest records are not

probative of criminal conduct. 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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By contrast, a conviction will usually serve as sufficient evidence that a person engaged in

particular criminal conduct. However, there may be evidence of an error in the record, an

outdated record, or another reason for not relying on the evidence of a conviction. For example, a

database may continue to report a conviction that was later expunged, or may continue to report

as a felony an offense that was subsequently downgraded to a misdemeanor.

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ii. Disparate Treatment

As stated in the EEOC Enforcement Guidance, under Title VII, employers may not treat criminal

history information differently for different applicants based on race or national origin or other

protected basis as this would lead to disparate treatment liability. For example, there is Title VII

disparate treatment liability where the evidence shows that a covered employer rejected an

African American applicant based on his or her criminal record but hired a similarly situated

White applicant with a comparable criminal record.

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The EEOC Enforcement Guide further states that “Title VII prohibits ‘not only decisions driven

by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking . . . .’ Thus, an

employer’s decision to reject a job applicant based on racial or ethnic stereotypes about

criminality - rather than qualifications and suitability for the position - is unlawful disparate

treatment that violates Title VII.

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iii. Disparate Impact

In addition to avoiding disparate treatment liability, e employers must avoid creating a disparate

impact on any protected group in regard to denying employment to individuals based on

conviction or arrest records. Where there is a showing of disparate impact, an employer must

justify that its policy regarding using criminal record information is job related and consistent

with business necessity.

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A policy or practice that excludes everyone with a criminal record