The “Guidance” approved by U.S. Equal Employment Opportunity Commission (“EEOC”) on April 25, 2012, restricts employers’ ability to consider criminal history in hiring and retention decisions. In so doing, it contains some unintended ironies.
Not surprisingly, the Guidance provide that an employer violates Title VII of the Civil Rights Act of 1964 (“Title VII”) if it treats similarly situated individuals with similar criminal records differently because of his or her race, national origin, or other protected basis. “For example,” it explains, “there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record.”
But the EEOC goes farther. It pronounces that an employer will be deemed to violate Title VII even if the employer’s entirely neutral policy or practice of considering criminal history “disproportionately screen[s] out Title VII-protected groups.” In other words, even if the employer treats similarly situated individuals with similar criminal records identically, it will be deemed in violation of the Title VII if the the effect of such policy disproportionately disadvantages minorities. An employer can avoid penalty for such practice only if it “demonstrate[s] that the challenged practice is job related for the position in question and consistent with business necessity.”
That an employer’s neutral policy of considering criminal history will nearly always disproportionately disadvantage Title VII-protected groups is implied by the EEOC early in the Guidance, where it notes that, statistically, arrest and incarceration rates are far higher for minorities than for non-minorities.
There is a rich irony here. After all, it is the government, both in its state and federal components, that arrests and incarcerates Title VII-protected groups disproportionately, according to the EEOC. And it is the government, in the form of the EEOC, now informing the employers that they may be penalized if they adopt neutral policies that derive from the government’s disproportionate arrest and incarceration of minorities.
“Do as we say, not as we do,” the EEOC is telling employers. “Or else.”