EEOC Cracks Down on Consideration of Criminal Convictions in Hiring

January 21, 2015

By: Gabrielle Valentine

While reducing recidivism has been the driving force behind the Ban the Box initiative, the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964 (“the Guidance”) sheds a new light on the importance of employers following fair hiring standards.[1]  Although the Guidance is not binding on courts, it is of great significance to employers because many courts defer to the Equal Employment Opportunity Commission (EEOC), and companies not complying with EEOC regulations risk being sued by the EEOC.

Under Title VII of the Civil Rights Act, employers may not treat a current or potential employee differently than other current or potential employees on the basis of a protected class such as race, color, religion, sex, or national origin.[2]  This prohibits employers from engaging in activities such as hiring, firing, or demoting based on a protected class.  Title VII also prohibits employers from engaging in standard operating practices and procedures that, while seemingly neutral and non-discriminatory on their face, ultimately have the effect of discriminating against a particular protected class.

Prior to enacting the Guidance, the EEOC recognized that for the previous twenty years, the number of people having contact with the criminal justice system was significantly increasing in the working-age population.[3]  Specifically, the EEOC recognized that arrest and incarceration rates were particularly high for African-American and Hispanic men.[4]  The EEOC notes that African-Americans are arrested two to three times more frequently that others of the general population.[5]  While statistics predict that 1 in 17 white men will spend time in prison during their lifetime, 1 in 6 Hispanic men and 1 in 3 African-American men are expected to serve time in a prison.[6]  Thus, an employer may violate Title VII two ways: (1) if, based on race or national origin, he treats criminal history information differently for different applicants or employees, or (2) he has a practice of uniformly considering arrest and conviction records that, on its face seem non-discriminatory, but actually has the effect of excluding African-Americans and Hispanics from the workplace because of the statistically proven higher arrest and conviction rates.[7]

The EEOC Guidance provides that, for an employer to have a practice of considering an applicant’s criminal history without risking liability under Title VII, the consideration of applicants’ criminal history must be job-related and consistent with business necessity.[8] In determining whether the conviction is consistent with business necessity, the EEOC will consider the following factors: (1) the nature and gravity of the offense or conduct, (2) the time that has passed since the offense or conduct and/or completion of the sentence, and (3) the nature of the job held or sought.[9]

EEOC Pic

While the EEOC did not see much initial success in the enforcement of the Guidance, two recent lawsuits against BMW Manufacturing and Dolgencorp indicate EEOC’s interest in the enforcement of fair hiring standards.  In its suit against BMW, the EEOC alleged that BMW’s background check has a disparate impact on African-Americans by depriving them of employment with BMW and BMW’s logistic services providers.[10]

However, the EEOC faces much opposition because of its practice to conduct background checks when hiring for most positions.  In response to the EEOC’s complaint, BMW filed a motion to compel documents that describe the EEOC’s hiring process in relation to criminal background checks.[11]  The EEOC objected on the grounds that its hiring practices were not relevant to the issue of whether BMW’s practices were consistent with business necessity.[12]  The EEOC’s relentlessness in pursuing “violations” of Title VII in relation to criminal background checks marks the potential for a future of litigation.

Ultimately, the Ban the Box movement is nothing short of a win-win policy for everyone involved.  Not only does the community benefit from reduced recidivism, but following the Guidance shields employers from the risk of EEOC liability while greatly expanding the pool of qualified applicants since many applicants with a criminal history are deterred from even applying for a job.  Furthermore, the “business necessity” analysis applied by the EEOC shields the employer from negligent hiring claims because, for the most part, employers considering the nature of the offense, the time that has passed since the offense, and the nature of the job held or sought will not hire employees that pose a significant threat to the workplace.

[1] The Ban the Box initiative is a movement that asks employers to refrain from requiring individuals to disclose criminal convictions on initial applications. For more information about Ban the Box and the clinic’s work with the initiative please see the following: https://cslcivilrights.com/2014/03/13/i-am-not-my-record/.

[2] Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e

[3] EEOC Decision No. 915.002, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (2012).

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Complaint, EEOC v. BMW Mfg. Co., LLC.

[11] Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.

[12] Brief in Opposition to Defendant’s Motion to Compel Production of Documents, EEOC v. BWM Mfg. Co., LLC.


A Dangerous Reality: The Law Used as a Tool for Destruction

October 31, 2014

By: Gabrielle Valentine

The Holocaust was “the systematic, bureaucratic, state-sponsored persecution and murder of six million Jews by the Nazi regime and its collaborators.”[1]  Many people are bewildered by the atrocities of the Holocaust, as they consider how so many people could join together to obey the orders of one dictator and eventually murder over six million people.  Although many perpetrators of this horrendous genocide were brought to justice at the Nuremburg Trials, where the Nazi leaders were tried for war crimes, the startling reality is that these war crimes were committed under the disguise of the law.

The people of the war-stricken, depression-battered Germany fell to the Nazi party’s illusory promises of peace and prosperity.  Appealing to and indoctrinating the minds of the Germans through propaganda and lies, the Nazis obtained the majority of the German parliament, and appointed Adolf Hitler Chancellor of Germany in 1933.  Later that same year, the Nazis set fire to the German parliament building.  Hitler used this occurrence to declare a state of emergency and assume dictatorial power.  The Parliament now consisted of one party—the Nazi party, which merely rubber-stamped Hitler’s proposals.

Jews captured by German troops during the Warsaw Ghetto uprising in April-May 1943.

Jews captured by German troops during the Warsaw Ghetto uprising in April-May 1943.

The democracy of Germany was destroyed from within—by its government, in its courts, and through its exercise of the law.  Free, political debate no longer existed.  Trade unions no longer existed.  Freedom of speech no longer existed—in fact, speech against the Nazi regime meant concentration camps, torture, and death.  Freedom of the press no longer existed—books, newspapers, and magazines not consistent with Nazi ideology were burned in public.  Professionals not subscribing to the Nazi ideology were prohibited from practice.  Governments and leaders were able to commit heinous crimes for years, because any opposition was suppressed and stifled through the Nazi war machine.

The law in Germany was implemented as a tool of serious destruction, to strip away the very values of humanity.  As early as 1933, laws were passed to remove Jews from professions of government and legal service.  Very soon, the Nuremburg Laws stripped Jews of their citizenship.  Most public places were marked “No Jews Allowed” or “Only Germans.”  Jews were expelled from public facilities; Jewish children were expelled from public Aryan schools; and Jewish businesses were boycotted.  Jews were removed from numerous other professions, and Jews were forced to transfer their property to non-Jews, and quickly Jews were not allowed to own any businesses.[2]  Under the guise of the law, millions of precious human lives were targeted for annihilation.

A woman sits on a park bench marked “Only for Jews.” Austria, ca. March 1938. US Holocaust Memorial Museum, courtesy of Wiener Library Institute of Contemporary History.

A woman sits on a park bench marked “Only for Jews.” Austria, ca. March 1938. US Holocaust Memorial Museum, courtesy of Wiener Library Institute of Contemporary History.

According to the Nazi racial ideology, the Jews were a biologically inferior race seeking to take over the German nation and were polluting the “Master Aryan Race.”  Hitler not only persecuted Jews, but also homosexuals, Gypsies, Masons, and Jehovah Witnesses, all in order to “purify” the Aryan race.  The Nazis sought to eradicate the handicapped, “mentally retarded,” and “useless eaters” through euthanasia, also known as “mercy killing.”

Anti-Semitic conditions worsened until public violence against the Jews progressed to cold-blooded murder.  What began as racial targeting soon progressed to deportations and ghetto confinement.  In only a few short years, the persecution progressed to a massive planned extermination program through death in concentration camps and gas chambers.  Even when many of the Nazi war criminals were brought to justice at the Nuremberg Trials, most of them claimed innocence under the law, since they were “only following orders.”

So, how is what happened during the Holocaust relevant to us today in the 21st century? Most students in schools across our nation are taught very little, if anything, about the Holocaust.  Further, men and women throughout America and the world are denying that the Holocaust ever happened, even in the face of volumes of evidence and eyewitnesses that attest to this truth. The Holocaust is only one of many murderous genocides of the 21st century.  Throughout the world, racial discrimination, hatred, and murder are still dangerous forces of destruction against humanity.  We have a responsibility to stand firmly against evil and to not allow such hatred as prevailed in the Holocaust to ever prevail again.

Display of Holocaust denial at a demonstration in Tehran, Iran. 2006. United Press International

Display of Holocaust denial at a demonstration in Tehran, Iran. 2006. United Press International

Stacks of German documents collected by war crimes investigators as evidence. US Holocaust Memorial Museum, courtesy of National Archives and Records Administration, College Park, MD

Stacks of German documents collected by war crimes investigators as evidence. US Holocaust Memorial Museum, courtesy of National Archives and Records Administration, College Park, MD

Martin Niemoller, a protestant pastor who narrowly escaped execution during the Holocaust, famously wrote:

First they came for the Socialists, and I did not speak out—Because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out—Because I was not a Trade Unionist.  Then they came for the Jews, and I did not speak out—Because I was not a Jew.  Then they came for me—and there was no one left to speak for me.[3]

May these words be an everlasting remembrance to us that we should never turn our eyes from injustice as did the “bystanders” during the Holocaust.  Whether guardians of the law through the legal profession or baggers of groceries at the local store, we as Americans must stand boldly to safeguard justice and humanity, and ensure that the law is never used as a tool for dangerous destruction.  We must always stand up for what we know is right and never forget the power of one lie spread through the propaganda of a power-thirsty, racist dictator.  For if we forget the past, we are condemned to repeat it.

[1] http://www.ushmm.org/wlc/en/article.php?ModuleId=10005143

[2] See United States Holocaust Memorial Museum: Examples of Anti-Semitic Legislation, 1933–1939 for a description of the laws that deprived the Jews of various rights.

[3] http://www.ushmm.org/wlc/en/article.php?ModuleId=10007392


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