Disparate Impact of Criminal Convictions and Black and Hispanic Men

Yarelyn Mena and Edgar M. Rivera, Esq. 

Many companies require their job applicants to undergo criminal conviction checks as part of the hiring process, and use that information to make hiring decisions. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employers from discriminating against job applicants based on a protected class; however, discrimination does not need to be intentional—Title VII also prohibits “disparate-impact” discrimination. One way employers violate Title VII is if they have a blanket policy disqualifying all applicants with criminal convictions, the policy has a disparate impact, and the disqualification is not job-related or consistent with a valid business necessity.

A company’s facially neutral rule may be illegal when the rule disparately impacts a protected class and is neither job-related nor consistent with a valid business necessity. In anti-discrimination law, a protected class is a characteristic of a person that cannot be targeted for discrimination, for example, race, color, religion, and national origin. Any discrete group can be disparately impacted. For example, a police department that imposes a height requirement may unintentionally exclude many women, who generally are shorter than men, from the position, although they otherwise are qualified for the position. Accordingly, the police department’s rule violates Title VII if the department cannot show that police offers must be tall to perform the various functions police work requires, which is unlikely to be the case.

A rule that categorically rejects applicants with criminal convictions disparately impacts minority applicants, particularly Black and Latino men. The Equal Employment Opportunity Commission (“EEOC”), which is tasked to enforce Title VII, reports: “African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.” If an employer relies on criminal convictions records when making employment decisions, Black and Latino are likely to be rejected at a higher rate than White men.

In response to these ongoing problems, the EEOC issued the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the “Guide”), which guides employers who use criminal conviction history as a factor when making employment decisions to navigate this complicated area of law. The Guide states that if an employer relies on criminal conviction records, the criminal conviction must be related to the job in question and the employer must show that there is not a less discriminatory “alternative employment practice” that serves the employer’s legitimate goals as effectively as the challenged practice.

When considering an applicant that has a record of past criminal conduct, the employer should notify the applicant that the criminal record might exclude him or her from the position so that the applicant can offer more information about the conviction before the employer makes an adverse hiring decision. Information from the applicant reveals if the conviction is related to the position and to the overall business necessity. Employers should not have policies that outright reject applicants because of a criminal conviction. Employers should consider the nature of conviction, the circumstances surrounding the offense, rehabilitation efforts, the total number of offenses, and the amount of time that has elapsed since the conviction in order to prevent unintentionally discriminating against candidates.

If you believe your employer illegally discriminated against you, please contact The Harman Firm, LLP.