Enforcement guidance issued by the EEOC last week focused on the use of criminal history information with respect to “disparate impact” claims under Title VII of the Civil Rights Act. Title VII prohibits not only intentional discrimination, but also “disparate impact,” that is, facially-neutral employment policies that have a disproportionate negative impact on minorities.
Based on conviction rates for African-Americans and Hispanics across the nation, the guidance makes it clear that the EEOC presumes that any employer’s use of criminal history information during the application process disproportionately excludes racial minority applicants. Basically, the EEOC is requiring that employers prove business necessity of their screening procedures. Moreover, to prove business necessity, employers will be required to validate, through statistics, the link between the disqualifying criminal conduct and subsequent work performance.
The new approach will allow the EEOC to file and investigate more charges of disparate impact, which present significantly more exposure. To lessen the risk of disparate impact liability, the EEOC suggests that employers make an individualized assessment of an applicant’s criminal background, only after deciding to hire the applicant and that employers only request “job related” criminal convictions, instead of a list of all criminal convictions.
What are your thoughts on the EEOC guidance…are employers guilty until proven innocent, as some would suggest?