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

from employment will not be job-related and consistent with business necessity and therefore

will violate Title VII, unless it is required by federal law.

295

In a case involving a criminal record exclusion, the Eighth Circuit in its 1975

Green v. Missouri

Pacific Railroad

decision, held that it was discriminatory under Title VII for an employer to

“follow[] the policy of disqualifying for employment any applicant with a conviction for any

crime other than a minor traffic offense.” The Eighth Circuit identified three factors (the “Green

factors”) that were relevant to assessing whether an exclusion 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 or completion of the

sentence; and



The nature of the job held or sought.

296

To establish that a criminal conduct exclusion that has a disparate impact is job related and

consistent with business necessity under Title VII, the employer needs to show that the policy

operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in

the duties of a particular position.

Two circumstances in which the Commission believes employers will consistently meet the “job

related and consistent with business necessity” defense are as follows:



The employer validates the criminal conduct screen for the position in

question per the Uniform Guidelines on Employee Selection Procedures

(Uniform Guidelines) standards (if data about criminal conduct as related to

subsequent work performance is available and such validation is possible);



The employer develops a targeted screen considering at least the nature of

the crime, the time elapsed, and the nature of the job (the three Green

factors), and then provides an opportunity for an individualized assessment

for people excluded by the screen to determine whether the policy as applied

is job related and consistent with business necessity.

297

According to the EEOC Enforcement Guidance, individualized assessment generally means that

an employer informs the individual that he or she may be excluded because of past criminal

conduct; provides an opportunity to the individual to demonstrate that the exclusion does not

properly apply to him or her; and considers whether the individual’s additional information

shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the

criminal record, or that the record is otherwise inaccurate. Other relevant individualized evidence

includes, for example:



The facts or circumstances surrounding the offense or conduct;