Peter J. Richter
While some states, like Wisconsin, generally outlaw discrimination on the basis of an individual’s criminal history (subject to certain exceptions), a criminal record is not a protected characteristic under federal law. Nevertheless, an employer may be liable for discrimination under Title VII of the Civil Rights Act (Title VII) if the employer’s use of criminal history results in the disparate treatment or a disparate impact based on race, color, religion, sex, or national origin. In fact, the Equal Employment Opportunity Commission (EEOC) has issued written guidance on the use of criminal history in employment decisions. Included in the EEOC guidelines are the following:
In summary, the EEOC has emphasized that the use of criminal history may have a disparate impact on certain individuals falling within a protected class. While the EEOC has faced some serious criticism from the attorney generals of nine states, a few federal judges and some legal commentators, it seems unlikely that the agency will completely reverse its stance on the issue. It appears to be the EEOC’s position that concerns about the guidelines are overblown and that the guidelines do not mean it is illegal for an employer to use the results of criminal background screening when making employment related decisions. Nevertheless, any employer that uses criminal background information should still be prepared to demonstrate the relation to the position and business necessity defense for those adverse employment decisions involving the use of criminal history.
If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at firstname.lastname@example.org or (608) 257‑2281 or your Stroud attorney.
DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.