The Equal Employment Opportunity Commission Charges That Employer’s Criminal History Screening Causes Discriminatory Impact Against Black, Native American, and Other Workers
The EEOC filed suit against Sheetz, Inc.; Sheetz Distribution Services, LLC; and CLI Transport, LP (collectively, Sheetz), which together operate a chain of convenience stores with over 600 locations in six states. According to the lawsuit, Sheetz has maintained a longstanding practice of screening all job applicants for records of criminal conviction and then denying them employment based on those records. The EEOC does not allege that Sheetz was motivated by race when making hiring decisions.
The federal commission is basing its allegations based on Title VII of the Civil Rights Act of 1964.
EEOC Regional Attorney Debra M. Lawrence.“Federal law mandates that employment practices causing a disparate impact because of race or other protected classifications must be shown by the employer to be necessary to ensure the safe and efficient performance of the particular jobs at issue.”
“Even when such necessity is proven, the practice remains unlawful if there is an alternative practice available that is comparably effective in achieving the employer’s goals but causes less discriminatory effect” Lawrence added.
The EEOC’s rationale for how an employer screening for criminal records is discrimination based on race is their belief of disparate impact. According to federal statistics, arrest and incarceration rates are particularly high for African American and Hispanic men, therefore they are more likely to have criminal records.
A covered employer is liable for violating Title VII when the plaintiff demonstrates that the employer’s neutral policy or practice has the effect of disproportionately screening out a Title VII-protected group and the employer fails to demonstrate that the policy or practice is job-related for the position in question and consistent with business necessity.
So, does this mean employers cannot check criminal records on applicants/employees? No.
Of course, employers cannot discriminate based on race, color, religion, sex, national origin and other statuses under other laws. Various federal case law[1] and EEOC Guidance[2] discuss policy or practices that are job-related for the position in question and consistent with business necessity. Employers can defend their policies and practices by conducting Individual assessments and considering the Green Factors[3].
The Eighth Circuit identified three factors (the “Green Factors”) that were relevant to assessing whether an exclusion is job-related for the position in question and consistent with business necessity:
The nature and gravity of the offense or conduct
The time that has passed since the offense or conduct and/or completion of the sentence
The nature of the job held or sought
An employment policy and/or practice of flatly disqualifying an applicant for having any criminal conviction (other than a statutory requirement) will lead to legal issues. Instead, through individual assessment, look at the individual applicant, their record, and how an offense relates to the job duties, how long ago it was, and what have they done since the offense, such as successful employment, courses or education.
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[1] Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act. V Disparate Impact Discrimination and Criminal Records
[2] Griggs v. Duke Power Co., 401 U.S. 424 (1971), Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977)
[3] Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. V. Disparate Impact Discrimination and Criminal Records B. Job Related For the Position in Question and Consistent with Business Necessity
[4] Eighth Circuit Court, Green v. Missouri Pacific Railroad 1975