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

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/her/their criminal record but hired a similarly situated White applicant with a comparable criminal record. 301 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. ”302 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. 303 A policy or practice that excludes everyone with a criminal record from employment will not be job-related and consistent with business necessity and therefore will violate Title VII, unless it is required by federal law. 304 As discussed above, in a case involving a criminal record exclusion, the Eighth Circuit in its 1975 Green v. Missouri Pacific Railroad decision, held that it was discriminatory under Title VII for an employer to “follow[] the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense.” The Eighth Circuit identified three factors (the “Green factors”) that were relevant to assessing whether an exclusion is job related for the position in question and consistent with business necessity:

 The nature and gravity of the offense or conduct;

 The time that has passed since the offense or conduct or completion of the sentence; and

 The nature of the job held or sought. 305

To establish that a criminal conduct exclusion that has a disparate impact is job related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.

Two circumstances in which the Commission believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

 The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures

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