In 2012, the Equal Employment Opportunity Commission (EEOC) issued enforcement guidance for employers who want to use information about an applicant’s criminal record when making hiring decisions (we’ll call it the “Guidance” from here on out).
This disparate treatment Guidance consolidated and updated the EEOC’s long-standing policies regarding the use of such information and reminded employers that they cannot apply convictions and other criminal records in a discriminatory manner.
Included in the Guidance was an updated and expanded explanation of the two standards used to assess an employers’ liability for discrimination under Title VII of the Civil Rights Act of 1964: disparate treatment and disparate impact.
An employer’s ability to defend against a claim of discrimination depends on which of these two standards applies. Here’s what you need to know.
What is the EEOC Disparate Treatment Standard?
Described in Part IV of the Guidance, disparate treatment refers to overt acts of discrimination.
Sometimes called intentional discrimination, these are employer policies and actions that are discriminatory by design.
As the Guidance explains, an employer violates Title VII of the Civil Rights Act of 1964 if that employer treats a job applicant or employee differently because of that person’s race, color, religion, sex, or national origin.
According to the Guidance, biased statements made by managers or supervisors, different treatment of similarly situated applicants, and comparative data gleaned from the employer’s records are among the types of evidence that may prove discrimination through disparate treatment.
How Disparate Treatment Impacts Criminal Record Consideration
Concerning the consideration of criminal records, discrimination may occur when an employer relies on race or ethnic stereotypes related to criminal behavior. For example, an employer who background-checks only a specific type of applicant demographic because they believe these applicants commit more crimes is engaging in blatant discrimination.
Discrimination may also occur when an employer fails to consistently apply the same criminal background check policy to all similarly situated employees or applicants.
For example, if there are two similarly-situated candidates with criminal backgrounds and the employer rejects the one who belongs to a protected class based on his or her criminal background while hiring the other candidate, the employer may be engaging in discrimination and bias.
Sometimes, an employer’s misuse of criminal conviction histories is evidence of a broader pattern of disparate treatment. This is allegedly the case in a 2017 complaint filed by the EEOC against Diversified Maintenance Systems, LLC (DMS)
One count of the EEOC’s complaint against DMS alleges that the company sought to reduce the number of African Americans applicants by “repeatedly emphasizing to them that the company performed a criminal background check.”
Of course, background checks are a common requirement for many jobs, and the decision to require them does not, in itself, leave a company vulnerable to discrimination.
Instead, it is the different treatment of applicants that is the basis of the EEOC’s claim under Title VII disparate treatment laws. In this case, DMS didn’t emphasize its screening policy to non-African American applicants, thus creating the basis of the EEOC’s claim under Title VII disparate treatment laws.
What is the Difference Between Disparate Treatment and Disparate Impact?
While disparate treatment and disparate impact sound similar, they are not the same thing. To put it simply, disparate treatment is an employee-issued claim. If a worker believes a company has treated him or her in a discriminatory way, he or she can file an allegation of disparate treatment.
Disparate impact, meanwhile, is unintentional discrimination. Here’s how EEOC explains disparate impact:
Discrimination does not merely take place through intentional acts of overt discrimination against individuals – the generally accepted “disparate treatment” definition of discrimination. Instead, the Commission holds that discrimination also occurs when neutral policies or practices have a disproportionate, adverse impact on any protected class, usually minorities or women.
According to the Society for Human Resource Management (SHRM), “Both disparate impact and disparate treatment refer to discriminatory practices.”
Avoid Liability With Clear, Applied Policies
To prevent liability under Title VII disparate treatment laws, employers should treat all employees and job applicants equally.
And, as the EEOC Guidance and enforcement actions make clear, this fair and equal treatment applies to the request and consideration of criminal records. Policies concerning the request and use of criminal histories should be clear and communicated to all hiring managers and supervisors.
By understanding the rules, employers can continue to employ criminal history background checks and gain valuable information before making a fair hiring decision.
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DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your own counsel if you have legal questions related to your specific practices and compliance with applicable laws.