Criminal Record Discrimination: Disparate Treatment or Disparate Impact

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On the Federal Level Criminal Record or Arrest History Discrimination can take two distinct forms:

Disparate Treatment Discrimination:

Title VII of the Civil Rights Act of 1964, prohibits treating employees with the same criminal record differently based upon race, national origin, age, gender, disability, pregnancy status or religion. This is called Disparate Treatment Discrimination.

Disparate Impact:

When criminal record exclusions operate to disproportionately exclude people of a particular race or national origin, the employer has to show that the exclusions are “job related and consistent with business necessity" under Title VII to avoid liability. This is called Disparate Impact Discrimination.

Additional Resources

White, Rose and Marks, L.L.C.

What You Should Know About the EEOC and Arrest and Conviction Records

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