Race, Employment, and Crime: The Shifting Landscape of Disparate Impact Discrimination Based on Criminal Convictions

AuthorAndrew Little,Lucas Loafman
Date01 June 2014
Published date01 June 2014
Race, Employment, and Crime:
The Shifting Landscape of Disparate
Impact Discrimination Based on
Criminal Convictions
Lucas Loafman* and Andrew Little**
The disparate impact theory of discrimination under Title VII of the Civil
Rights Act of 19641is not new, yet it is taking on a different, more
antagonistic dimension. Since the early 1970s it has been a recognized
theory under which plaintiffs may seek redress for discriminatory prac-
tices.2In addition, by the mid-1970s the courts recognized that in some
instances an employer’s criminal conviction policy, which screens out
applicants or employees with criminal convictions, may have a disparate
impact on members of minority races and be unjustified by a lack of
*J.D., M.B.A., Department Chair—Management & Marketing and Assistant Professor,Texas
A&M University Central Texas.
**J.D., Assistant Professor of Business Law, Abilene Christian University.
1Pub. L. No. 88-352, Title VII, 78 Stat. 241, 253 (1964).
2Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) (“Under [Title VII], practices, proce-
dures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained
if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.”). The
term “disparate impact” did not begin to be associated with this holding until the late 1970s.
See, e.g., Dickerson v.U.S. Steel Corp., 439 F. Supp. 55, 70 (E.D. Pa. 1977) (noting that neutral
practices illegally affecting blacks more than whites is known as the “disparate impact”
theory); Martha Chamallas, Evolving Conceptions of Equality Under Title VII: Disparate Impact
Theory and the Demise of the Bottom Line Principle, 31 UCLA L. REV. 305, 305 (1983) (referring
to cases in which an employer is charged with unintentional discrimination as disparate
impact cases); Glenn B. Manishin, Note, Section 1981: Discriminatory Purpose or Disproportionate
OLUM.L.REV. 137, 138 n.7 (1980) (noting the disproportionate impact test is also
referred to as disparate impact).
American Business Law Journal
Volume 51, Issue 2, 251–314, Summer 2014
© 2014 The Authors
American Business Law Journal © 2014 Academy of Legal Studies in Business
business necessity, and therefore violate Title VII.3In this regard, the law
for at least the last three decades has been moderately stable. However, in
the past five years there has been a marked increase in district court cases
involving criminal conviction policies and disparate impact claims, and the
Equal Employment Opportunity Commission (EEOC or Commission) has
promulgated aggressive new Guidance that attempts to increase litigation
and enforcement in this context.4In fact, as recently as June 2013
the EEOC filed two new actions against BMW Manufacturing and
Dolgencorp, doing business as Dollar General, for alleged violations of
Title VII arising from the conviction screens of these large employers. The
result of the recent spate of lower-level cases and Commission action is an
uncertain and seemingly shifting landscape for employers. Several ques-
tions arise. How and when can employers screen out applicants based on
past convictions? Do the increased enforcement efforts—spearheaded by
the EEOC—impose costs on employers and society at large that outweigh
the supposed benefits? Has the EEOC disregarded the legal, commercial,
and ethical justifications for excluding from employment those with
certain convictions? What is the statistical support for the EEOC’s Guid-
ance related to disparate impact based on race? What is the role of the
business community in responding to societal problems? These questions,
among many others, are highlighted in this article in an attempt to
increase awareness and enlarge scholarly dialogue on this contentious and
murky issue.
At the outset, we emphasize that this article and the questions we
raise have a limited scope. Discrimination is a societal evil that the EEOC,
state and local authorities, the business community, nonprofit advocacy
groups, and individuals in their daily lives should all seek to eliminate. In
this vein, we do not address disparate treatment—in other words,
intentional—discrimination, nor do we challenge the underpinnings of
disparate impact theory or the suggestion that what appear to be neutral
workplace rules can have the effect of perpetuating discrimination. Along
these lines, and to take one clear example, employer use of criminal arrest
3See infra Part II.A.
4See, e.g., Class Action Complaint, Arroyo v. Accenture, LLP, No. 10-CV-3013 (S.D.N.Y. Apr.
OF 1964 (2012) [hereinafter EEOC 2012 ENFORCEMENT GUIDANCE], available at http://
252 Vol. 51 / American Business Law Journal
records is and should remain prohibited.5Finally, we are not focusing on
possible disparate impact arguments based on the Americans with Disabili-
ties Act (ADA) and conviction screens, though we recognize the link
between rehabilitated (and therefore protected) drug addiction and crimi-
nal convictions.6The position we stake out, and on which we encourage
dialogue and debate, is the more legally and ethically difficult conundrum
of how employers may use criminal conviction records without perpetu-
ating invidious discrimination in the workplace.7
Though much has already been written on this subject, legal schol-
arship tends to suggest, not surprisingly, a greater need for more or better
law. Professors O’Brien and Darrow argued in 2007 that a clear federal
statute prohibiting conviction discrimination would provide uniformity to
the patchwork and conflicting approach of the various state and local
legislative regimes.8Or, in another like-minded move, American Civil
Liberties Union staff attorney Linda Lye argued in her 1998 comment that
5Though related, this article will not examine in depth disparate impact actions as they relate
to arrests and employment applications, as there is a sound underpinning for EEOC action
on that basis. See, e.g., Gregory v. Litton Sys. Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970)
(“[I]nformation concerning a prospective employee’s record of arrests without convictions, is
irrelevant to his suitability or qualifications for employment.”), modified on other grounds, 472
F.2d 631 (9th Cir. 1972). We will also not address EEOC enforcement in disparate treatment
cases involving criminal convictions where the employer disqualifies members of one race
based on a criminal conviction, but not another, as those cases clearly indicate discriminatory
intent and lie at the heart of what Title VII is designed to prohibit. See, e.g., Press Release,
EEOC, Franke Foodservice Systems Settles EEOC Race Discrimination Lawsuit (Mar. 26,
2009), available at http://www.eeoc.gov/eeoc/newsroom/release/3-26-09c.cfm(discussing settle-
ment of a lawsuit arising from a company refusing to hire a black applicant into a permanent
position because he disclosed a felony conviction on his application, even though the
company hired a white applicant a year earlier who made a similar disclosure).
6See Stacy A. Hickox & Mark V. Roehling, Negative Credentials: Fair and Effective Consideration
of Criminal Records,50A
M.BUS. L.J. 201, 216 (2013) (noting that ex-offenders may also enjoy
protection against disparate impact under the ADA).
7This conundrum was highlighted in a recent news article that quoted Elizabeth Milito of
the National Federation of Independent Business about the difficulty of background
checks in the current legal environment. Milito stated that “[p]eople are confused, afraid and
saying I could get sued either way.” Joseph Weber, Feds File Civil Rights Suits on Companies
Using Criminal Background Checks for Hires,F
OX NEWS.COM ( June 22, 2013), http://www.foxnews
8Christine Neylon O’Brien & Jonathan J. Darrow, Adverse Employment Consequences Triggeredby
Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination,42WAKE
FOREST L. REV. 991, 1025 (2007).
2014 / Race, Employment, and Crime 253

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT