NELP & CLS Training Series
Maximizing Enforcement of the Employment Rights of People with Criminal Records
Race Discrimination
Claims for Criminal
Record Rejections
By Sharon M. Dietrich
October 23, 2014
Our Topics Today
 A short history of Title VII and criminal records;
 Highlights of the 2012 EEOC Guidance;
 Preparing and filing an EEOC charge, and handling
of the charge by the EEOC;
 Different rules for federal jobs;
 A quick look at the materials.
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A Short History
of Title VII
and Criminal Records
Racially Disparate Impact and Criminal Records
 Because people of color are disproportionately
represented in the criminal justice system,
employer policies that exclude people with
records have a disparate impact on people of
color.
 Such policies must be justified by business
necessity.
 Violates Title VII (federal antidiscrimination law)
and can violate state/local laws.
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Origins of Title VII Disparate Impact
 Adopted by the U.S. Supreme Court in Griggs
v. Duke Power Co., 401 U.S. 424 (1971).
 Codified in Title VII in 1991, 42 U.S.C. §2000e2(k)(1)(A).
 Distinguished from disparate treatment cases
– intentional discrimination.
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Three Steps of Disp. Impact Analysis
 (1) a complaining party demonstrates that a respondent
uses a particular employment practice that causes a
disparate impact on the basis of race;
 (2) the respondent fails to demonstrate that the
challenged practice is job related for the position in
question and consistent with business necessity; and
 (3) the complaining party demonstrates an alternative
employment practice and the respondent refuses to
adopt such alternative employment practice.
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Green v. Missouri Pacific Railroad Co.
 523 F.2d 1290 (8th Cir.1975), on appeal after remand, 549
F.2d 1158 (8th Cir. 1977)
 Prohibited the automatic denial of employment based on
a criminal conviction.
 Permitted the employer to consider convictions “so long
as defendant takes into account the nature and gravity of
the offense or offenses, the time that has passed since
the conviction and/or completion of sentence, and the
nature of the job for which the applicant has applied.”
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3 EEOC Guidances Followed
 Convictions policy (1985)(Clarence Thomas) – adopted 3
Green factors.
 Proof of disparate impact (1987)
 Arrest records (1990) – Green factors, plus required
review of conduct underlying arrest. “A blanket exclusion
of people with arrest records will almost never withstand
scrutiny.”
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Then came a fallow period . . .
 True for disparate impact litigation in
general, but also criminal records
specifically.
 A notable decision: Field v. Orkin, No. 005913, 2001 WL 34368768 (E.D. Pa. Oct. 30,
2001)(applied Green analysis to white
plaintiff).
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El v. SEPTA
 479 F.3d 232 (3d. Cir. 2007).
 Would not give deference to EEOC’s guidance – analysis
was lacking.
 Title VII requires that criminal record policies “accurately
distinguish between applicants that pose an
unacceptable level of risk and those that do not.”
 Called for “some level of empirical proof that challenged
hiring criteria accurately predicted job performance.”
 Plaintiff lost for lack of business necessity expert.
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Highlights of the
2012 EEOC Guidance
EEOC Enforcement Guidance
 Crucial new enforcement guidance approved on April 25,
2012.
 Subregulatory, so not controlling on courts, but probably
entitled to deference. Certainly controlling on
Commission.
 For more information, see Highlights of EEOC’s New
Criminal Record Guidance (April 26, 2012)
http:www.eeoc.gov/laws/guidance/upload/arrest_conviction.pdf
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Title VII: Proof of Disparate Impact
 In a lawsuit, complex statistical evidence is
required. Where does it come from? How is it
analyzed?
 In the EEOC, disparate impact is presumed, need
not be proved (Guidance, p. 10).
 Key reason EEOC charges are more feasible than
litigation.
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Title VII: Business Necessity & Arrests
 “An exclusion based on an arrest, in itself, is not
job related and consistent with business
necessity.” (Guidance, p. 12).
 An employer is supposed to evaluate the
likelihood that the person engaged in the conduct
for which s/he was arrested.
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Title VII: Business Necessity & Convictions
EEOC policy says that an employer is to consider the
following factors:
1. The nature and gravity of the offense/conduct;
2. The time that has passed since the offense
and/or the sentence completion;
3. The nature of the job held or sought.
(Guidance, p. 15 - derived from Green).
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Title VII: Matrices (“Targeted Exclusions”)
 Should take into account fact-based evidence,
legal requirements, studies (p. 17).
 Guidance suggests employers should distinguish
between different jobs and different offenses and
provide time limits for disqualifications (see esp.
Example 7, pp. 18-19).
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Title VII: “Individualized Assessments”
 Not required, but strongly recommended to
avoid liability.
 Process:
 Employer notifies applicant of possible
rejection;
 Applicant has opportunity to respond;
 Employer considers what applicant said.
(Guidance, p. 18).
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Title VII: “Individualized Assessments” – Identified
Factors
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
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

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Inaccurate information in record;
Facts around criminal conduct;
Number of offenses;
Older age at time or conviction/release;
Work history since conviction;
Rehabilitation;
References;
Bonded.
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Title VII and “Ban the Box”
 Guidance endorses the BTB principle of not
asking about a criminal record on a job
application as a best practice (Guidance,
pp. 13-14).
 Should limit the number of applicants for
which individual assessments are needed.
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Title VII: Some Implications
 Across-the-board exclusions usually violate
Title VII (p. 16).
 So does the firing of current employees
who are performing well but have criminal
records (see Example 8, p. 20).
 So do on-line applications that kick out
people with a record (see Example 5, p. 16).
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Preparing and Filing an
EEOC Charge
Strategy when Client has Title VII Claim
 File EEOC Charge. Cannot go to court without
this. Fairly easy administrative procedure.
 And/or contact employer to explain law and
demand job back.
 But don’t delay filing EEOC charge so long that
miss deadline (180 or 300 days, depending on
state)(But only 45 days for federal
employment!)
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Preliminaries under Title VII
 Employer must have 15 employees for jurisdiction
 Know your possible remedies!
 Injunctive relief (usually instatement or
reinstatement)
 Lost wages
 Attorneys’ fees
 No compensatory or punitive damages for
disparate impact! (Add a disparate treatment
claim?)
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Preparing an EEOC Charge – Identify Elements of
the Story
 Collect info about the job opportunity lost
because of the criminal record (do you know the
employer’s policy?)
 Establish what client’s criminal record is.
 Identify the factors in the EEOC guidance that
support the client (especially the Green factors).
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Preparing an EEOC Charge – Prepare 3 Documents
 One-page charge form (only document given to
employer).
 More detailed declaration setting out the facts.
 Cover letter – emphasize why the case is
important; reference the Guidance and explain
the legal theory.
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Filing the EEOC Charge
 Identify your district office.
 Can be mailed in.
 File within either 180 or 300 days of knowledge of
the rejection (depending on whether your state is
a “deferral state.”
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EEOC’s Response to Your Charge
 Expect lengthy delays!
 Investigation is mostly a remote, ex parte process.
 Some places may have fact-finding conferences,
but doubtful.
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EEOC’s Investigation
 They will ask the employer for a written response
to the one-page charge (which you may or may
not get).
 If they are serious about your charge, they will
develop disparate impact data, using their
systemic staff. Often subpoena fights with
employers.
 They could mediate/try to settle the charge.
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Outcome: “Finding”
 “Cause” – leads to formal conciliation, possible
decision on whether EEOC or USDOJ would
litigate; they can’t order anything.
 “No cause” – plaintiff has 90 days to file a lawsuit.
Investigatory file can be “FOIAed” after a finding of
no cause.
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Title VII Litigation
 Should you take the case to court? That’s a
commitment of a whole other magnitude.
 Cases are very expensive to litigate, and require
experts.
 Work with private bar and others who have
experience with such litigation.
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Federal Jobs:
A Different Ballgame
Federal Jobs – Substantive Standards
 OPM establishes criteria for agencies to
make “suitability” determinations – 5 CFR
§731.202.
 If an agency finds someone “unsuitable,”
that person can be barred for up to 3 years
- 5 CFR §731.205.
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Federal Jobs – Crazy Procedures
 Contact agency’s EEO counselor in 45 days.
 If no informal resolution, notice of failure;
formal complaint must be filed in 15 days.
Consider class allegations.
 Notice of final action – court action must
be filed in 90 days.
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A Quick Tour of the Materials
 Demand letters
 Sample EEOC charge materials
 Sample client education flyer
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