I recently attended an EEOC Training Seminar in Pasadena where Maurice Emsellem, Esq., Director of the Second Chance Labor Project and National Employment Law Project provided an enlightening discussion on how criminal background checks have a disparate impact on people of color, California African American job applicants in particular.  An interesting fact is that about one in five adult Californians has a criminal record on file with the State.  You can view one of his Powerpoint Presentations to see the work reentry challenges these applicants face in California (19.4% of the Nation’s total).  

According to Attorney Emsellem, one of the main problems is many employers have "blanket prohibitions" against hiring anyone with any kind of a criminal record, no matter how old the conviction and no matter what the prior offense was.

Along these same lines, the EEOC has posted some guidelines about employers using "conviction records" as a screening method.  Workplace investigators should review these EEOC guidelines prior to undertaking the investigation of a "failure to hire" claim.  The EEOC policy strictly limits consideration of prior criminal convictions.

  • Business Necessity Defense:  Employers must justify employment decisions based on convictions, as follows:  
  1. The conviction must be "job-related" taking into account the nature and gravity of the offense or offenses;
  2. The nature of the job held or sought; and 
  3. The time that has passed since conviction and/or completion of the sentence.
  • Rejected Defense:  Employer’s argument that it has a significant representation of that minority race in its existing workforce (the "bottom line" defense) is not a valid defense to a disparate impact claim.   Connecticut v. Teal, 457 U.S. 440 (1982).  

Footnote 6 of the EEOC Guidelines states:

The [EEOC’s] revised business necessity analysis follows a decision by the United States Court of Appeals for the Eighth Circuit in the Green v. Missouri Pacific Railroad Company case. Green, 523 F.2d 1290 (8th Cir. 1975), is the leading Title VII case on the issue of conviction records. In that case, the court held that the defendant’s absolute policy of refusing employment to any person convicted of a crime other than a minor traffic offense had an adverse impact on Black applicants and was not justified by business necessity. On a second appeal in that case, following remand, the court upheld the district court’s injunctive order prohibiting the defendant from using an applicant’s conviction record as an absolute bar to employment but allowing it to consider a prior criminal record as a factor in making individual hiring decisions as long as the defendant took into account "the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of sentence, and the nature of the job for which the applicant has applied." Green v. Missouri Pacific Railroad Company, 549 F.2d 1158, 1160 (8th Cir. 1977) (emphasis added).

Accordingly, EEO investigators should be aware of the need for an employer to make "individualized hiring decisions", based on the three criteria delineated by the EEOC in its guidelines, rather than utilizing a "blanket prohibition" of applicants with prior convictions.