Written by attorney Vincent Peter White

Arrest Based Employment Discrimination Versus Conviction Based Employment Discrimination

  • The EEOC has recently issued additional guidance pertaining to employment discrimination against both arrested and convicted individuals.

  • A mere arrest is not proof of criminal activity, as such excluding an employee from employment based solely upon an arrest is improper. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question. The EEOC Goes on to provide an example of a teacher arrested for allegedly inappropriately touching female students in crowded hall ways. Although the teacher was not found guilty of the crime in the end, the EEOC found that terminating the teacher based on the allegations was not discrimination. To quote the EEOC: "The school’s policy is linked to conduct that is relevant to the particular jobs at issue, and the exclusion is made based on descriptions of the underlying conduct, not the fact of the arrest. The Commission finds no reasonable cause to believe Title VII was violated."

  • A conviction on the other hand generally does serve as proof that the underlying crime was committed. Convictions can be ignored under certain circumstances however: "However, there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction. For example, a database may continue to report a conviction that was later expunged, or may continue to report as a felony an offense that was subsequently downgraded to a misdemeanor."

Determining Whether a Criminal Conduct Exclusion Is Job Related and Consistent with Business Necessity

In order for an employer to act upon a conviction, the employer must show "that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position. "

The EEOC provices who examples of “job related and consistent with business necessity":

"The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures" or

"The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity."

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