The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued an Enforcement Guidance on employers’ use of arrest and conviction records in hiring, as well as published a final rule clarifying the “reasonable factors other than age”(“RFOA”) defense under the Age Discrimination in Employment Act (“ADEA”). Both the Guidance and the new regulations demonstrate the EEOC’s focus on requiring employers to demonstrate the legitimate, job-related basis for employment actions.
Guidance on Consideration of Criminal History in Hiring
On April 25, 2012, the EEOC issued an Enforcement Guidance on an employer’s use of an individual’s criminal history in making employment decisions under Title VII of the Civil Rights Act of 1964 (the “Guidance”). Title VII prohibits employment discrimination based on race, color, religion, sex or national origin. Illegal discrimination can take the form of intentional disparate treatment, or it can be established by showing that a policy or practice has an unjustified disproportionate adverse impact on a protected group. Because national data shows that certain minority groups have higher arrest and conviction rates than non-minorities, an employer’s use of an individual’s criminal history could give rise to a discrimination claim. Specifically, a covered employer would be liable under Title VII when either (1) race, national origin or another protected characteristic motivates the employer’s use of an applicant’s criminal record in making a hiring decision, or (2) the employer’s policy or practice of screening out applicants based on their criminal record has the effect of disproportionately excluding a protected group of applicants, and the employer fails to demonstrate that the policy or practice is job-related and consistent with business necessity.
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