Page 92 - MetalForming October 2012

You and The Law
By Douglas B.M. Ehlke
Job-Application Inquiries On Criminal Convictions
The Federal Equal Employment Opportunity Commission (EEOC) has approved new guidance on criminal-conviction background checks. It urges employers to reexam- ine conviction inquiries on job appli- cations, and issues new guidelines called “Enforcement Guidance On The Consideration Of Arrest and Conviction Records in Employment Decisions,” effective as of April 25, 2012.
Considering criminal history is unlawful unless the employer can prove that its policy is narrowly tailored, job- related and consistent with business necessity. Employers must prove affir- matively, if compliance-audited, that their policies are justified by specific needs of the business and are job-related.
The EEOC’s actions come in response to a reported significant increase in the unemployment rate for people with criminal records, especially among minorities. The Commission, in a 4- to-1 vote, concluded that an employer’s neutral policy (excluding applicants from employment based on certain criminal conduct) may disproportion- ately impact some individuals pro- tected under Title VII, and may violate the law if not job-related and consistent with business necessity (disparate impact liability). The Commission
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor-union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and envi-
ronmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 tel. 253/839-5555
fax. 253/874-5475 dehlke@ehlkelawoffices.com
based its conclusion on “national data” which reportedly finds that criminal- record exclusions have disparate impact based on race and national ori- gin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challeng- ing criminal record exclusions.
To determine impact, the Commis- sion primarily compared prison arrest/conviction population statistics to general population percentages of race and national origin. Its report cited these government statistics and described what it might take for an investigated employer to counter them:
“Nationally, African Americans and Hispanics are arrested in numbers dis- proportionate to their representation in the general population. In 2010, 28 per- cent of all arrests were African Ameri- can even though African Americans only comprise approximately 14 per- cent of the general population. In 2008, Hispanics were arrested for federal drug charges at a rate of approximate- ly three times their proportion of the general population. Moreover, African Americans and Hispanics were more likely than Whites to be arrested, con- victed, or sentenced for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites.”
African Americans and Hispanics also are incarcerated at rates dispro- portionate to their numbers in the gen- eral population. Based on national incarceration data, the U.S. Depart- ment of Justice estimates that 5.9 per- cent of the white men in the United States are expected to go to prison at some point during their lifetime. This rate climbs to 17.2 percent for Hispan- ic men and 32.2 percent for African American men.
The data supports a finding that criminal-record exclusions have a dis-
parate impact based on race and national origin, and provides a basis for the Commission to further investigate such Title VII disparate impact charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s).
For example, an employer may pres- ent regional or local data showing that African American and/or Hispanic men in the employer’s geographic area are not arrested or convicted at dispro- portionately higher rates. An employer also may use its own applicant data to demonstrate that its policies or prac- tices did not cause a disparate impact. The Commission will assess relevant evidence when determining disparate impact, including applicant flow infor- mation maintained pursuant to the Uniform Guidelines on Employee Selection Procedures, workforce data, criminal history background-check data, demographic availability statistics, incarceration/conviction data, and/or relevant labor-market statistics.
An employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact. In Con- necticut v. Teal, the Supreme Court held that a “bottom line” racial balance in the workforce does not preclude employees from establishing a prima facie case of disparate impact; nor does it provide employers with a defense. The issue is whether the policy or practice deprives a disproportionate number of Title VII- protected individuals of employment opportunities.”
Presumptions of impact must be overcome by specific need and local- ized data of an employer’s applicant pool population, showing there is no disparate impact on black and Latino job applicants whenever a challenged
90 MetalForming/October 2012
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