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

5. O THER O FFENSES If the prospective employee has been convicted of a crime other than the ones specified above, the District must consider hiring that person as long as the prospective employee is otherwise qualified for the job. Thus, in deciding whether to hire an individual with a criminal record, an employer must assess the candidate’s ability to perform the essential functions of the job. An employer must evaluate the applicant’s circumstances to determine if the conviction is sufficiently serious, recent and job related to disqualify him/her/them from the job. Importantly, the district should only consider any convictions that are not sex or drug related after a conditional offer has been made. In the case of an applicant, a district should be prepared to demonstrate why the particular offense makes the applicant unsuitable for the position. For current employees, a district will have to show that the offense giving rise to the conviction constitutes cause to terminate. For academic employees, this will mean satisfying one of the grounds set out in Education Code section 87732 (e.g. immoral conduct, unprofessional conduct, etc.) For classified employees cause would be demonstrated based upon the provisions of district policy in non-merit districts or by statute in merit districts. 296 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 affect 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. 297 While the EEOC will continue its longstanding policy approach in this area, the Enforcement Guidance provides more in-depth analysis than the EEOC’s earlier statements. 298 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. 299 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. 300

Name that Section: Frequently Used Education Code and Title 5 Sections for Community College Districts ©2020 (c) Liebert Cassidy Whitmore 97