EEOC Restates Its Position That the Use of Arrest Records May Violate Title VII

On April 25, 2012 the EEOC restated the possibility that the use of criminal background checks by employers may violate Title VII if the standard they employ has a disproportionate adverse impact based on race, national origin, or other protected category. The EEOC’s April 25 Enforcement Guidance can be found at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Employers need not intend to discriminate to violate Title VII if their hiring standards have a disparate impact, and the EEOC believes that using criminal history data very frequently has a disparate impact.  If a disparate impact is statistically present (and it almost always is), employers will have to demonstrate “business necessity” for the use of the standard.  Exactly how this EEOC standard integrates with the mandatory board policy required by Ind. Code 20-26-5-10 is not entirely clear, but not every crime should be treated the same. An important factor in “business necessity” is the list of “essential functions” in the job the applicant is being considered for, or a current employee performs. For a set of factors that can be used to evaluate arrest and conviction data, contact a member of the Bose McKinney & Evans Education Law Group.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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