Name that Section - Frequently Used Education Code and Title 5 Sections for Community College Districts

a. Consideration of Criminal Offender Record Information Under Title VII Once an employer obtains an applicant’s criminal record, it must determine whether it will hire the individual. However, a prospective employer should not automatically disqualify applicants with criminal records. Rejecting all applicants with criminal records might disproportionately impact individuals within a protected class and lead to a discrimination lawsuit against the agency. On April 25, 2012, the EEOC issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII. 288 While the EEOC will continue its longstanding policy approach in this area, this new Enforcement Guidance provides more in-depth analysis than the EEOC’s earlier statements. 289 i. Arrests vs. Convictions The fact of an arrest does not establish that criminal conduct has occurred. Arrest records are not probative of criminal conduct. Although an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question. The conduct, not the arrest , is relevant for employment purposes. 290 By contrast, a conviction will usually serve as sufficient evidence that a person engaged in particular criminal conduct. However, there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction.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. 291 ii. Disparate Treatment As stated in the EEOC Enforcement Guidance, under Title VII, employers may not treat criminal history information differently for different applicants based on race or national origin or other protected basis as this would lead to disparate treatment liability. For example, there is Title VII disparate treatment liability where the evidence shows that a covered employer rejected an African American applicant based on his or her criminal record but hired a similarly situated White applicant with a comparable criminal record. 292 The EEOC Enforcement Guide further states that “Title VII prohibits ‘not only decisions driven by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking . . . .’ Thus, an employer’s decision to reject a job applicant based on racial or ethnic stereotypes about criminality - rather than qualifications and suitability for the position - is unlawful disparate treatment that violates Title VII. ”293 iii. Disparate Impact In addition to avoiding disparate treatment liability, e employers must avoid creating a disparate impact on any protected group in regard to denying employment to individuals based on conviction or arrest records. Where there is a showing of disparate impact, an employer must justify that its policy regarding using criminal record information is job related and consistent with business necessity. 294 A policy or practice that excludes everyone with a criminal record

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2018 (c) Liebert Cassidy Whitmore 95