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Is it Legal to Reject Applicants With Criminal Records?

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Can an employer legally reject all job applicants with criminal records?

The U.S. Equal Employment Opportunity Commission does not think so, and has announced that it is suing two employers, auto maker BMW and retailer Dollar General, alleging that the practice disproportionately screens out African American job seekers.  The complaints were filed in federal courts in Illinois and South Carolina.

Title VII of the Civil Rights Act of 1964 forbids racial discrimination against job applicants.  The EEOC has increased its anti-discrimination actions in recent years – with 600 investigations carried out in 2011 versus less than 50 in 2006.

“There is no federal law that clearly prohibits an employer from asking about arrest and conviction records,” said the EEOC. ”  However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”

In other words, people convicted of crimes are not specially protected under civil-rights laws.  However, the EEOC can sue if it believes information about prior convictions is being used to discriminate against a racial or ethnic group.

The Commission says instead of blanket rejections of all applicants with criminal histories, employers should give an applicant “the opportunity to explain the circumstances of the arrest(s) and should make it reasonable effort to determine whether the explanation is reliable.”   According to the EEOC, “Even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”).  If the employer does not show that such an exclusion is job related and consistent with business necessity for the position in question, the exclusion is unlawful under Title VII.”

The EEOC issued guidance to employers last year after PepsiCo agreed to pay $3.1 million and change its screening policy to settle charges of discriminating against African Americans by improperly using criminal checks.  In some cases, Pepsi screened out job applicants who had been arrested but never convicted.

 

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