Race/Color—Police Records Of
Applicants
• 600,000 individuals are released from state and
federal prisons each year
• Gregory v. Litton Systems (9th Cir. 1972)
• Disparate-impact analysis
• Held: Gregory not hired because of his arrest
record
Race/Color—Police Record Of
Applicants
• Green v. Missouri Pacific Railroad (8th Cir.
1975)
▫ Facts; issue
• Prima facie case? Business necessity?
• Holding; district court must determine whether
Green’s background and experience qualified
him for the position
• Dissent from order denying en banc rehearing
Race/Color—Police Records Of
Applicants
• El v. SEPTA (3d Cir. 2007)
• Plaintiff was convicted of second degree murder
when he was 15 years old
• At-issue policy had a disparate impact on
African-American workers
• Employer lawfully refused to employ the
plaintiff
• Agree or disagree?
Race/Color—Police Record Of
Applicants
• EEOC Enforcement Guidance No. 915.002 (Apr.
25, 2012)
• No disparate treatment of applicant criminal
history based on race or national origin
• Exclusion based on an arrest is not job-related
and consistent with business necessity
▫ Employer may base decision on the conduct
underlying the arrest if the conduct makes the
person unfit for the position in question
EEOC Enforcement Guidance (cont.)
• A conviction record is usually sufficient evidence
that the applicant engaged in specific conduct
• Disparate impact and the employer’s jobrelated/business necessity defense
• Employer must
▫ Develop a targeted screen considering (1) nature
of the crime, (2) time elapsed, (3) nature of the job
▫ Provide opportunity for an individualized
assessment for persons identified by the screen
Race/Color—Police Record Of
Applicants
• Ban The Box: remove the conviction history
question from job applications, with no background
checks until later in the hiring process
▫ Adopted by 20 states, more than 100 cities and
counties
• Endorsed by the EEOC’s 2012 Guidance
• President Obama has directed federal agencies to
“ban the box,” instructed the Office of Personnel
Management to delay criminal history inquiries
until later in the hiring process
Race/Color—Bona Fide Seniority
Systems
• Sec. 703(h): “it shall not be an unlawful
employment practice for an employer to apply
different standards of compensation, or different
terms, conditions, or privileges of employment
pursuant to a bona fide seniority . . . system . . .”
Race/Color—Bona Fide Seniority
Systems
• Teamsters v. U.S. (U.S. 1977)
• Seniority: (1) company; (2) departmental;
competitive
• Post-Act discrimination (see Franks v. Bowman
Transp. Co.)
• Pre-Act discrimination
• Sec. 703(h); disparate impact; victims of pre-Act
discrimination
Teamsters (cont.)
• Held: “the routine application of a bona fide
seniority system” does not violate Title VII, even
though the system perpetuates the effects of preAct discrimination
• “Bona fide” seniority system: does “not have its
genesis in racial discrimination”
Race/Color—Bona Fide Seniority
Systems
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Theories
“Freedom now”: displacement of white workers
“Status quo”:
“Rightful place”: future jobs not awarded on the
basis of seniority system that “locks in” prior
racial classifications