Privacy Issues in the Community College Workplace

Deciding whether to hire an individual with a criminal record requires thorough analysis and assessment. Human resources professionals know that they must assess each candidate’s ability to perform the essential functions of a job. The employer needs to consider the applicant’s individual circumstances to determine if the conviction is sufficiently serious, recent and job- related to disqualify him or her from the job. In 2012, the Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance regarding the consideration of arrest and conviction records in employment decisions. 104 The enforcement guidance reaffirms two uses of criminal history information by employers that may violate Title VII: (1) “disparate treatment”, when the employer treats applicants with the same criminal history differently because of their race, color, religion, sex, or national origin; and (2) “disparate impact”, where even though the employer applies criminal record exclusions uniformly, the exclusions operate to “disproportionately and unjustifiably” exclude people of a particular race or national origin. The employer can overcome a showing of disparate impact by demonstrating that the exclusion is “job related and consistent with business necessity”. 105

The EEOC Enforcement Guidance sets forth two circumstances where an employer may consistently meet the “job related and consistent with business necessity” defense. 106 These are:

 The employer “validates the criminal conduct exclusion for the position in question in light of the Uniform Guidelines on Employee Selection Procedures (if there is data or analysis about criminal conduct as related to subsequent work performance or behaviors)”; or  The employer “develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job. . . . The employer’s policy then provides an opportunity for an individualized assessment for those people identified by the screen, to determine if the policy as applied is job related and consistent with business necessity.”

The EEOC Enforcement Guidance further advises that: “while Title VII does not require an individualized assessment in all circumstances, the use of a screen that does not include an individualized assessment is more likely to violate Title VII.”107 Thus, we recommend performing an individualized assessment for applicants to determine if the policy as applied is job related and consistent with business necessity. D. F INGERPRINT R ECORDS Education Code section 88024 mandates that a district must fingerprint each employee in a nonacademic position within 10 working days of the employee’s first day of work. The employee must have a local law enforcement agency with jurisdiction over the district fingerprint her or him. Education Code section 88024 further specifies that the law enforcement agency must use an 8 x 8 fingerprint card and include a personal description of the employee or applicant. The law enforcement agency must then transmit the cards to the Department of Justice.

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 36