Civil Rights Act of 1964 and Criminal Records in Employment Decisions

On this day in 1964, President Lyndon B. Johnson signed into law the historic Civil Rights Act. The Civil Rights Act of 1964 outlaws discrimination on the basis of race, color, religion, national origin, and sex in public accommodations, employment, and federally funded programs. Title VII of the Civil Rights Act of 1964 makes it unlawful for covered employers to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges or employment, because of such individual’s race, color, religion, sex, or national origin.” SEC. 2000e-2. Section 703(a) It also created the Equal Employment Opportunity Commission (EEOC) to enforce federal employment discrimination laws.

25 years ago, the EEOC ruled “that it was illegal under the Civil Rights Act for companies to exclude people from employment based on arrest or conviction records — unless there was a compelling business reason.” (A Fair Shot At a Job, Brent Staple, April 21, 2012, New York Times)

But in 2011, the National Employment Law Project, an advocacy group, reported “about 90 percent of companies are using criminal background checks in hiring decisions and about 65 million people have criminal records.” (A Fair Shot At a Job)

Over the past few months, articles from the New York Times have highlighted an updated policy by the EEOC, announced in April 2012, reaffirming their policy on criminal background checks in hiring decisions and providing further guidance to employers.

“The commission said that while employers may legally consider criminal records in hiring decisions, a policy that excludes all applicants with a conviction could violate employment discrimination laws because it could have a disparate impact on racial and ethnic minorities…unless they could show that such exclusions were job related and consistent with business necessity.

“The agency instead called for employers to conduct individualized assessments of job applicants in a way that examined the nature and gravity of the criminal offense, the time passed since the offense and the nature of the job applied for.

“In saying that a blanket exclusion can be discriminatory, the commissioners noted that if current incarceration rates remained unchanged, about one in 17 white men are expected to serve time in prison during their lifetime, compared with one in six Hispanic men and one in three African-American men.

“’National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin,’ the agency said.” (Equal Opportunity Panel Updates Hiring Policy, Steven Greenhouse, April 25, 2012, New York Times)

U.S. Push on Illegal Bias Against Hiring Those with Criminal Records, by Robb Mandelbaum (New York Times, June 20, 2012) provides further explanation on how hiring policies that exclude all applicants with criminal records is discriminatory and violates Title VII.

“The landmark Civil Rights Act, passed in 1964 and expanded over the years, protects people from racial, ethnic and other kinds of discrimination in a variety of settings, including at work.

“Employment discrimination provisions of the act apply to companies with more than 15 employees and define two broad types of discrimination, disparate treatment and disparate impact. Disparate treatment is fairly straightforward: It is illegal to treat someone differently on the basis of race or national origin.

“For example, an employer cannot refuse to hire an African-American with a criminal conviction but hire a similarly situated white person with a comparable conviction.

“Disparate impact is more complicated. It essentially means that practices that disproportionately harm racial or ethnic groups protected by the law can be considered discriminatory even if there is no obvious intent to discriminate. In fact, according to the guidance, “evidence of a racially balanced work force will not be enough to disprove disparate impact.”

“As the E.E.O.C. establishes in its guidance, members of some minority groups are much more likely to be arrested and convicted than whites. From the commission’s perspective, the Civil Rights Act serves to make certain that disparity is not compounded in the workplace.”

Further Resources:

Enforcement Guidance on the Consideration of Arrest and Conviction
Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 from the EEOC

What You Should Know about the EEOC and Arrest and Conviction Records” from the EEOC

Questions and Answers About the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII” from the EEOC

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