Discrimination Based on Criminal Conviction

[mitousmom]

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.

You lost me in the second paragraph. However, a prima facie case and the shifting burden are parts of the analytical framework for a disparate treatment allegation of discrimination. The analytical framework is different for an allegation of adverse impact. Griggs held that the employer has the burden of producing and proving the business necessity of its requirement.

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.

The investigators who discuss and process EEO claims know more about the EEO laws, their applications and the standards for a violation than the average private attorney who professes to be experienced in EEO matters. The value of private counsel tends to be their knowledge of the workings, requirements, and prior relevant decisions of the court systems. They are invaluable in court, but I've not been impressed with their utility in the administrative process. If EEOC determines that the case has litigation potential it will assign an attorney to ensure that the evidence obtained meets the courts' standards for submission.

It's pretty well established that a probable cause letter makes it easier for an individual to obtain competent private counsel. And, a full EEOC investigation can significantly reduce the amount of discovery and decrease the cost of litigation for the individual. The last time I looked at the statistics, individuals who sue following a probable cause have a higher chance of winning in federal district court than those with no probable cause decisions. However, I have to acknowledge that winning an EEO case in federal district court is not easy and defendants tend to do much better than plaintiffs.

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?

It's required because that's the way Congress wrote the laws. And, the Equal Pay Act is not equal to any Title VII claim. The Equal Pay Act only requires equal pay for equal work. Under Title VII, it is illegal to discriminate in any aspect of employment, including:

* hiring and firing;
* compensation, assignment, or classification of employees;
* transfer, promotion, layoff, or recall;
* job advertisements;
* recruitment;
* testing;
* use of company facilities;
* training and apprenticeship programs;
* fringe benefits;
* pay, retirement plans, and disability leave; or
* other terms and conditions of employment. See www.eeoc.gov

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.

Where did I indicate that EEOC represents many complainants in court? While I didn't reference the relationship between the individual and the government agency if the matter is in Court, I expressly advised that the government agency does not represent the individual during the administrative process.

[BOR]

It's required because that's the way Congress wrote the laws. And, the Equal Pay Act is not equal to any Title VII claim. The Equal Pay Act only requires equal pay for equal work. Under Title VII, it is illegal to discriminate in any aspect of employment, including:

* hiring and firing;
* compensation, assignment, or classification of employees;
* transfer, promotion, layoff, or recall;
* job advertisements;
* recruitment;
* testing;
* use of company facilities;
* training and apprenticeship programs;
* fringe benefits;
* pay, retirement plans, and disability leave; or
* other terms and conditions of employment. See www.eeoc.gov

The EPA prohibits disparing pay based on equal effort and responsibility on account of "sex", that was my point, as Title 7 prohibits sex discrimination also.

Where did I indicate that EEOC represents many complainants in court? While I didn't reference the relationship between the individual and the government agency if the matter is in Court, I expressly advised that the government agency does not represent the individual during the administrative process.

You didn't, I was just pointing out a fact.

[eeoc_avocate]

To be clear...I am not saying that criminality is a protected class. I can read and fully understand the words of the CRA I quoted. My intent is not to re-state "misunderstood" facts, but to simply point out that while criminality is not a specfically protected class, the EEOC has ruled several times that refusal to hire based soley on a criminal record is a form of discrimination. Let me clarify, my question I suppose should have been more specific: If not hiring a person based on their criminal background is discrimination, then isn't firing a person because of their criminal background also discrimination.

It's interesting to note, after doing a little more research on the company Jane worked for, it has come to my attention that she is not the only employee recently let go because of a criminal background. Within the past three months, three additional employees all working in the same district were terminated. Vermont is an "at-will" state meaning you can be fired or quit with or without notice or reason. I find it curious that this particular company has let four people go, citing their criminal background as a reason when no reason is necessary. It is also interesting to note that this is not occuring across the board within the company, it seems to be happening only in this district.

Is it just me or does something seem amiss?

[panther10758]

It is "not" illegal to terminate someone due to their criminal history especially if they lied about it.

[cyjeff]

To be clear...I am not saying that criminality is a protected class.

Since when? That is all you have said. Would you like me to pull out the quotes?

You remember, when you were saying that drug dealers had the best set of job skills involving customer service.

It's interesting to note, after doing a little more research on the company Jane worked for, it has come to my attention that she is not the only employee recently let go because of a criminal background. Within the past three months, three additional employees all working in the same district were terminated. Vermont is an "at-will" state meaning you can be fired or quit with or without notice or reason. I find it curious that this particular company has let four people go, citing their criminal background as a reason when no reason is necessary. It is also interesting to note that this is not occuring across the board within the company, it seems to be happening only in this district.

So, as a company, hiring and firing is NOT predicated on criminal background? Or is it? Just this department? Or just you?

What is your involvment in this case? Are you Jane? Do you work for the company? Are you either party's counsel? Are you getting all of your facts second hand?

[cbg]

Your mistake is in assuming that all discrimination is illegal.

You discriminate when you order chicken instead of steak. You discriminate when you pick the green shirt over the blue one. You discriminate when you pick your library books.

Unless the termination is BECAUSE OF a characteristic protected by law (and you admit that having a criminal conviction is not protected under the law) then it is not illegal discrimination.

Nor is it illegal to term someone for falsifying their application.

[mitousmom]

Unless Jane is Black or Hispanic, I'm not sure why we are discussing this under Title VII of the CRA. While EEOC's position is that not hiring or continuing the employment of Blacks and Hispanics with a criminal conviction can have an adverse impact, the statistics quoted are for the males of both groups. I'm not sure whether the statistics for females are as disproportionate and problematic.

I see nothing suspect in an employer informing an employee of the reason for her termination. And, I think it's a good idea for an employer to similarly treat those similarly situated, i.e., terminating the employment of all employees who have criminal convictions that don't allow their employment. For EEO purposes, similarly situated can be those within the same district under the same management and not the entire company. Although, treating districts differenly could be problematic depending upon the workforce characteristics.

If an employer's use of criminal convictions has an adverse impact on a particular protected group, terminating the employee who did not truthfully disclose that record, could also violate Title VII. However, as I recall Jane disclosed her criminal conviction, so I'm not sure why we are discussing falsifying an application.