Section 46 Convictions

• Library: Employer-Employee Law 2008

An employer may wish to investigate an applicant’s criminal record for several reasons, including reducing the likelihood of workplace violence. Caution is advised, however, in light of the position taken by the Equal Employment Opportunity Commission (EEOC). The EEOC has issued a policy statement on the denial of employment based on criminal convictions. The EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982, revised Feb. 4, 1987), available at www.eeoc.gov/policy/docs/convict1.html, provides that “an employer’s policy or practice of excluding individuals from employment on the basis of their conviction records has an adverse impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate disproportionately greater than their representation in the population,” and that therefore “such a policy or practice is unlawful under Title VII in the absence of a justifying business necessity.”

But the EEOC also states that if disqualification for employment based on a conviction is challenged as discriminatory because of disparate impact, the employer may prevail by presenting “more narrowly drawn statistics showing either that Blacks and Hispanics are not convicted at a disproportionately greater rate or that there is no adverse impact in its own hiring process resulting from the convictions policy.” EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from...