100%(2)2 out of 2 people found this document helpful
This preview shows page 53 - 56 out of 120 pages.
if employed, by relating the nature of the crime to the nature of the position, in light of the time elapsed since the crime” (EEOC, Office of the Legal Counsel, Informal Discussion Letter, Title VII: Criminal History & Arrest Records, 2013, p.2). Procedurally, the EEOC notes that “after the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of production and persuasion to the employer to
‘demonstrate that the challenged practice is job related for the position in question and consistent with business necessity’” (Equal Employment Opportunity Commission, 2012, p. 7). Evidence that the exclusionary policy is necessary for safe and efficient job performance will be a critical factor for the agency (Equal Employment OpportunityCommission, 2012, p. 7).The EEOC counsels the employer to make a distinction between arrests and convictions As such, employers must be cognizant of the fact that arrest records should be treated differently from conviction records (Cavico et al., 2014). Arrest standing alone does not necessarily mean that a job applicant has committed a crime and thus the employer should not assume that the applicant committed the offense. Rather, the employer should allow the applicant the opportunity to dispute the arrest and to explain the circumstances of his or her arrest or arrests; and then the employer should make a “reasonable effort” to determine if the explanation is “reliable” (Equal Employment OpportunityCommission, 2013).Compared to arrests a conviction typically will serve as sufficient evidence that a person engaged in the particular conduct; but nonetheless the agency also states that the conviction could be outdated or there could be errors in the record (Equal Employment Opportunity Commission, 2012).
Convictions can preclude employment if the history of criminal conduct is job-related and any exclusion is consistent with business necessity. However, for exclusions based on convictions, the law requires that the criminal conduct must be recent enough and sufficiently job-related tobe predictive of performance in the position desired given theduties and responsibilities (Cavico et al., 2014). Specifically, the EEOC holds that “an 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” (Equal Employment Opportunity Commission, 2012, p. 9). Another problematic area of disparate impact law and practice involves the employer’s use of credit checks to make hiring and promotion decisions.7. Credit checksAnother area of disparate impact concern for employers is theuse of credit checks in hiring and promoting. Credit checks, though applied to all employees, nevertheless may have an adverse disproportionate impact on minorities (Karpa, 2014; Concepcion, 2010). However, the Equal Employment Opportunity Commission maintains that neither Title VII nor other non-discrimination statutes prohibit discrimination