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.
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