by Art Gutman Ph.D., Professor, Florida Institute of Technology
On Theme 1, it is noted that an arrest does not, in itself, imply a job related reason for exclusion. However employers “may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.” In contrast, conviction records that will “usually serve as sufficient evidence that a person engaged in particular conduct.” However, there is the caveat that “there may be reasons for an employer not to rely on the conviction record alone when making an employment decision.” In my opinion, this latter caveat relates to a large extent on Theme 3.
On Theme 2, it would be disparate treatment if a conviction were used to exclude a minority but not a non-minority applicant. Adverse impact, on the other hand, involves a facially neutral policy of excluding all applicants with (say) felony convictions that disproportionately impacts minorities. As with adverse impact for other reasons (e.g., ability tests), the employer must show that the exclusionary policy is job related and consistent with business necessity. The EEOC suggests that the Uniform Guidelines on Employee Selection Procedures (UGESP) apply if there is “data or analysis about criminal conduct as related to subsequent work performance or behaviors.”
had a policy of excluding all individuals with convictions other than minor traffic offenses. Buck Green was excluded because he refused induction into the military and served 21 months in prison. The District Court for the Eastern District of Missouri ruled summary judgment for MoPac, but the 8th Circuit reversed, ruling:
Based on this case, the EEOC points to three “Green” factors to be considered when there is no validation study, including (a) the “nature and gravity of the offense or conduct” (assessed in terms of the harm caused by the offense); (b) time passed since “conduct and/or completion of the sentence” (emphasizing that risk of recidivism declines over time); and (c) “nature of the job held or sought” (including type of job, level of supervision, and job environment).
Finally, on Theme 4 (best practices), the EEOC recommends that in general, employers should eliminate exclusionary policies based on criminal records and train decision-making officials on Title VII proscriptions on employment discrimination. Employers are further advised to develop a policy that: