Discrimination Based on Criminal Conviction

[eeoc_avocate]

My question involves labor and employment law for the state of: Vermont

According to Title VII of the EEOC's Civil Rights ACT, at least as I understood it, an employer cannont deny people employment because of a criminal conviction unless there is a "business justification." The situation I am dealing with is a bit more complicated.

An employee (lets call her Jane) was hired almost a year ago to work for Company X. A year previous to her hire date, she was given a deferred sentence. When going through the interview process, Jane was honest and up front with Company X about her criminal history, and was hired anyway. Just a few days ago however, Company X fired Jane, stating that the personnel department had deemed her "unemployable" because of her criminal history. Her crime had nothing to do with Company X, was not a violent crime, and she is not a danger to herself or society.

Is it me, or does this sound like discrimination? And if it is infact discrimination what can Jane do about it, if anything? She wasn't denied employment because of her past, but she was fired after the fact.

Something seems off. What can she do?

[cbg]

Please show me where the EEOC says that.

[eeoc_avocate]

Title VII of the Civil Rights Act of 1964 restricts the state's ability to use criminal convictions in employment decisions (42 USC §2000e-5, et seq.). The Equal Employment Opportunities Commission (EEOC), the federal agency that enforces Title VII, has ruled that automatically disqualifying people who have criminal records from jobs is discriminatory because the practice disproportionately affects African American and Hispanic men. (These two groups have much higher criminal conviction rates than do Caucasian men.)

The EEOC has ruled repeatedly that covered employers cannot simply bar felons from jobs, but must show that a conviction-based disqualification is justified by "business necessity." The legal test requires employers to examine (1) the job-relatedness of each conviction, (2) the nature of the crime committed, (3) the number of convictions, (4) the facts surrounding each offense, (5) the length of time between the conviction and the employment decision, (6) the person's employment history before and after the conviction, and (7) the applicant's efforts at rehabilitation. According to the EEOC, the job-relatedness inquiry is the most important, and focuses on whether the job position applied for presents an opportunity for the applicant to engage in the same type of misconduct which resulted in the conviction (Bednar, "Employment Law Dilemmas," 11 Utah Bar J. 15 (Dec. 1998)).

[aaron]

Are you stating that this person was an ethnic minority?

[cbg]

I agree that the EEOC has stated that an across the board policy prohibiting hiring someone with a criminal conviction CAN create an adverse impact. That is NOT the same thing as making criminality a protected class. Choosing not to hire ONE employee because of their conviction is not creating an adverse impact.

Here is a link to the EEOC home page, showing clearly the forms of discrimination that are illegal. You will note that having a criminal conviction is not among them.

http://www.eeoc.gov/

You seem to be suggesting that an employer is REQUIRED to hire someone with a conviction over someone who does not have one, and that is simply not the case no matter how hard you protest.

[cyjeff]

This is the second time you have stated that discrimination against those with a criminal record is part of the EEOC "as you understand it".

Both times you have been asked to show the statute. Both times you haven't been able to do that.

Please do not confuse the people that read this board by knowingly repeating that which you KNOW is incorrect.

I understand you may want it to be different. You need to write your congressperson instead.

[mitousmom]

You will not find a reference to adverse impact in Title VII, just as you won't find a reference to disparate treatment. They are the theories of discrimination developed by the Courts and EEOC to apply the laws. Likewise, possession of a correction record is not going to be listed as a protected category.

Simply speaking adverse impact occurs when a facially neutral employment practice has an unjustified adverse impact on members of a protected class because of characteristics of the protected class. The seminal Supreme Court is Griggs vs. Duke Power where the Court ruled the company's high school diploma requirement for blue collar jobs discriminated illegally against black males because statistics showed that 34 percent of white males in that state had completed high school while only 12 percent of black males had done so. The company was not able to demonstrate a link between the high school diploma and job performance. The Court ruled that the requirement discriminated against black males because of their race.

EEOC position is 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 because U.S. Department of Justice statistics show that 32.2% (1 in 3) of African-American males, 17.2% (1 in 6) of Hispanic males, while only 5.9% (1 in 17) of White males are expected to go to prison during their lifetime. (Incarceration data is used as an approximation for conviction data.) As a result, an employer must justify its exclusion by a showing of business necessity. See http://www.eeoc.gov/policy/docs/convict2.html.

The possibility of adverse impact is based on statistics of the general population, not the activity of the employer. Therefore, an employer's conviction record prohibition policy can be ruled in violation of Title VII even if it's only been applied against one individual.

If an employer plans to deny employment to Blacks and Hispanics or terminate them because of a conviction, it better be prepared to show its decision was justified by business necessity. See http://www.eeoc.gov/policy/docs/convict1.html.

[BOR]

Advocate, IF you want to be "in the know", you have to read eye for eye some of the decisions MOM linked in the federal reporter system volumes OR law libraries have law journal volumes also and you cite;

(Bednar, "Employment Law Dilemmas," 11 Utah Bar J. 15 (Dec. 1998)).: as authority.

I believe I am correct to say this is a law journal piece and you can locate Utah's section and attempt to find it.

You must note here also, as others point out, as with any Civil rights violation under Title 7, the Equal Pay act, Age in discrimination employment act, etc., etc., YOU as a Plaintiff MUST prove, if such suit is filed, that the reason the applicant was denied employment was based soley on the fact of a criminal background.

You simply can't ask a court/jury to rule for you if you applied for a job and was denied because you had a criminal background. If that were the case, there would be very few loosing Plaintiffs who sued.

Additionally, IF a case is from another federal jurisdiction/circuit, it will not generally bind yours??

I will say I had never heard of such in Title 7 either until I read the thread.

Federal employment case law is vast as the known Universe.

Bottom line, IF Jane believes she is a possible victim of employment discrimination, she should consult an attorney who specializes in Federal labor/employment law for a case evaluation.

I know what that can detail, as many years ago I made my rounds with them seeking legal opinions on my facts.

[mitousmom]

You must note here also, as others point out, as with any Civil rights violation under Title 7, the Equal Pay act, Age in discrimination employment act, etc., etc., YOU as a Plaintiff MUST prove, if such suit is filed, that the reason the applicant was denied employment was based soley on the fact of a criminal background.

I know what that can detail, as many years ago I made my rounds with them seeking legal opinions on my facts.

For the protected classes on which the Commission has determined that the conviction records have an adverse impact, the burden is on the employer. The employer can present more narrow local, regional, or applicant flow data, showing that the policy probably will not have an adverse impact on its applicant pool and/or in fact does not have an adverse impact on the pool. Or, that the requirement is a business necessity.

I'm not big on sending individuals off to discuss EEO employment discrimination matters with lawyers. Most don't have that much experience in EEO matters and they usually won't do a free evaluation. The ones that you want to take your matter are usually in very high demand and know the system. For most employment discrimination, certainly discrimination based on a conviction record, there is not really much the attorney can do until the EEOC or the state equivalent does whatever it's going to do and issues a notice of right to sue. Further, most attorneys who plan eventually to sue in court want the government agency to develop as much of the record as it will. And, unless the attorney is taking the case on a contingency business, so does the individual, for the cost of developing the record, for which the individual is responsible, is very expensive. The attorney will have a better sense of the case and can make an informed evaluation, based on the evidence obtained from both parties, especially the employer.

Besides, the government's service is free and they are supposed to be the experts on EEO discrimination in their respective jurisdictions. To me, it makes more sense to go to one or both of them first and follow up with an attorney, if need be.

However, the individual should be aware that unlike a private attorney who represents him/her, the government agencies represent the government. The government's interest is whether the employer is complying with the statute. Usually that works to the advantage of the individual, but sometimes the interests diverge.

[BOR]

For the protected classes on which the Commission has determined that the conviction records have an adverse impact, the burden is on the employer. The employer can present more narrow local, regional, or applicant flow data, showing that the policy probably will not have an adverse impact on its applicant pool and/or in fact does not have an adverse impact on the pool. Or, that the requirement is a business necessity.

Some burden may shift to an employer after a prima facie case is presented by the Plaintiff, I agree. Similar to raising an affirmitive defense in criminal court, the burden then shifts to the defendant, NOT the state, to prove by a preponderance of the evidence the AD has weight/merit.

Still, the Plaintiff must prove his case, and that includes any response to the employers defense to counter it. I seriously doubt the employer will file papers stating they may have made a mistake of law, they will venomously cite case law to support thier position, then unless the PL rebuts it just as venomously, it will have a negative impact on thier case.



[quote]I'm not big on sending individuals off to discuss EEO employment discrimination matters with lawyers. Most don't have that much experience in EEO matters and they usually won't do a free evaluation. The ones that you want to take your matter are usually in very high demand and know the system. For most employment discrimination, certainly discrimination based on a conviction record, there is not really much the attorney can do until the EEOC or the state equivalent does whatever it's going to do and issues a notice of right to sue.

Further, most attorneys who plan eventually to sue in court want the government agency to develop as much of the record as it will. And, unless the attorney is taking the case on a contingency business, so does the individual, for the cost of developing the record, for which the individual is responsible, is very expensive. The attorney will have a better sense of the case and can make an informed evaluation, based on the evidence obtained from both parties, especially the employer.[quote]


That is why I told the OP to do his homework. After a right to sue letter is issued one has only a short amount of time to file suit and after the letter is on record is not the best time to have a case evaluated, before hand is the best course.

Besides, the government's service is free and they are supposed to be the experts on EEO discrimination in their respective jurisdictions. To me, it makes more sense to go to one or both of them first and follow up with an attorney, if need be.

However, the individual should be aware that unlike a private attorney who represents him/her, the government agencies represent the government. The government's interest is whether the employer is complying with the statute. Usually that works to the advantage of the individual, but sometimes the interests diverge.

MOST administrative personnel who evaluate EEOC claims are not attorneys, but simply that, a case evaluator. A Right to sue letter has no weight in court anyway, as if that were the case any plaintiff who files suit would most automatically win, and we know this is not the case.

They are similar to the probable cause standard in a criminal arrest. Has the alledged victim presented a prima facie case of discrimination and enough to sustain a charge being filed??


Discrimination under the Equal Pay Act of 1963 is = to any Title 7 claim, yet no such permission to sue, or the filing of a complaint with any agency is mandated. I for one, do not understand why such is required by law as in an EEOC complaint??

The government itself handles very few EEOC complaints for a Plaintiff, either as counsel of record, or co-counsel. The case must impact a substantial # of employees or a class action type case.

I don't have any stats to back me up on that, but it just stands to reason the gov. does NOT represent that many EEOC complainants in court.