Why is a union not fully consistent with the specialized and dedicated HR strategy? (2023)

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  • Index
  • II.Introduction
  • third background
  • A criminal record
  • B. Use of Criminal History Information by Employers
  • C. EEOC's Interest in Employers' Use of Criminal Records in Job Selection
  • 4. Sensitive treatment, discrimination and criminal record
  • V. Triggered Impact Breakdown y Strafregister
  • A. Determining the suppressive effects of policies or practices that screen individuals based on records of criminal conduct
  • B. Related to the job of the position in question and consistent with business needs
  • C. Less discriminatory alternatives
  • HE SAW. Jobs subject to federal prohibitions or restrictions for individuals with a history of specific criminal activity
  • A. Contracting in Specific Industries
  • B. Acquisition of professional permits
  • C. Exemption or Relief from Federal Occupational Restrictions
  • D. Security clearances
  • E. Work for the federal government
  • VII. Jobs subject to state and local bans or restrictions for people with a history of certain criminal activities
  • VIII. Best Practices for Employers
  • What human resources strategy is most compatible with the Union?
  • How can a good HR strategy reverse unionization initiatives?
  • What positive contributions can unions make to organizations following the Loyal Soldier human resources strategy?
  • What are the three disadvantages of joining a union?

Why is a union not fully consistent with the specialized and dedicated HR strategy? (1)

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Compliance Guidance for Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act

Issuing authority

This Guide is published after approval by the United States Equal Employment Opportunity Commission.

OLC control number


concise display name

Compliance Guidance for Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act

issue date


General topics

Race, color, sex, national origin


This document addresses the application of Title VII to the use of arrest or conviction records in employment decisions.


Title VII, 29 CFR Part 1601, 29 CFR Part 1606, 29 CFR Part 1607

document requester

Employers, Employees, Candidates, Attorneys and Professionals, EEOC Employees

Previous revision

Yes. This document combined and superseded 3 guides from the 1980s.


The content of this document has no legal force or effect and is not intended to bind the public in any way. This document is intended solely to provide the public with clarity on existing legal or regulatory requirements.

EEOC Application Guide



  1. SUBJECT: Compliance Guidance for Consideration of Arrest and Conviction Records in Employment Decisions Pursuant to Title VII of the Civil Rights Act of 1964, as Amended, 42 U.S.C. §2000e et seq.
  2. PURPOSE: The purpose of this Compliance Guide is to amplify the guidance documents of the US Equal Employment Opportunity Commission regarding the use of arrest or conviction records in employment decisions pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e and following.
  3. EFFECTIVE DATE: Upon receipt
  4. EXPIRATION DATE: This notice will remain in effect until terminated or superseded.
  5. ORIGIN: Office of the General Council.
Consideration of arrest and conviction records in employment decisions
Under Title VII of the Civil Rights Act of 1964


See also

What You Should Know About the EEOC and Arrest and Conviction Records

Questions and Answers on EEOC Application Guidance on Consideration of Arrest Records and Convictions in Title VII Employment Decisions

  1. resume
  2. Introduction
  3. background
    1. criminal records
    2. Use of Criminal Record Information by Employers
    3. EEOC's interest in employers' use of criminal records when selecting jobs
  4. Sensitive treatment, discrimination and criminal records
  5. Fired Impact Discrimination and Criminal Record
    1. Determining the suppressive effects of policies or practices that screen individuals based on records of criminal conduct
      1. Identify the practice or policy
      2. Determination of the triggered impact
    2. Work related to the job in question and consistent with the needs of the business
      1. Usually
      2. prisons
      3. beliefs
      4. Determine if a prohibition on criminal behavior is job related and consistent with business needs
      5. validation
      6. Detailed discussion of green factors and the detection of criminal behavior.
        1. The nature and seriousness of the offense or conduct.
        2. The time elapsed since the crime, conduct and/or sentence was completed
        3. The type of work performed or planned.
      7. Examples of criminal behavior exclusions that do not take environmental factors into account
      8. Targeted exclusions based on green factors
      9. individualized evaluation
    3. Less discriminatory alternatives
  6. Jobs subject to federal prohibitions or restrictions for individuals with a history of specific criminal activity
    1. hiring in certain industries
    2. Acquisition of professional permits
    3. Waive or invoke occupational restrictions imposed by the federal government
    4. security reviews
    5. Working for the federal government
  7. Jobs subject to state and local bans or restrictions for individuals with a history of specific criminal activity
  8. Best Practices for Employers

I. Resumen

  • An employer's use of an individual's criminal record to make hiring decisions may, in some cases, violate the prohibition on employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.

  • The guidance is based on longstanding court decisions and existing guidance issued by the US Equal Employment Opportunity Commission (Commission or EEOC) more than twenty years ago.

  • The guidance focuses on employment discrimination based on race and national origin. The introduction provides information on criminal records, employer practices, and Title VII.

  • The Guide discusses the differences between arrest and conviction records.

    • The fact of an arrest does not constitute criminal conduct, and the disqualification for an arrest is not itself related to the job or the needs of the Company. However, an employer may make a hiring decision based on the conduct underlying an arrest if the conduct renders the person unfit for employment.

    • Rather, a conviction record generally serves as sufficient evidence that an individual engaged in particular conduct. In certain circumstances, however, there may be reasons for an employer not to rely solely on the conviction record when making a hiring decision.

  • The different treatments and the different impact analyzes are discussed in the guidelines under Title VII.

    • A violation can occur when an employer treats criminal history information differently for different applicants or employees because of their race or national origin (differential liability).

    • An employer's neutral policy (eg, disqualifying job applicants for certain criminal conduct) may disproportionately affect some Title VII individuals and violate the law if it is unrelated to employment and consistent with the business needs (responsibility through different effects).

      • National data support the conclusion that expungement has different effects based on race and nationality. The national data provides a basis for the Commission to investigate various Title VII charges challenging expungement.

      • Two circumstances in which the Commission believes employers will consistently respond to the "job-related and consistent with business necessity" defense are as follows:

        • The employer validates the criminal conduct exclusion for the applicable position against uniform guidelines for employee selection processes (if data or analysis is available on performance-related criminal conduct or subsequent employment conduct); either

        • The employer develops a targeted assessment that takes into account, at a minimum, the type of crime, time elapsed, and type of work (all three in court in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (Cir. 8 of 1977)). The employer policy provides the opportunity for individual assessment for those identified through the screen to determine if the policy being applied is job related and consistent with a business necessity. (While Title VII does not require an individual rating in all circumstances, a Title VII violation is more likely to occur if a screen that does not contain an individual rating is used.)

  • Compliance with other federal laws and/or regulations that conflict with Title VII is a defense against a charge of Title VII discrimination.

  • State and local laws or regulations are overridden by Title VII if they "intend to require or permit the commission of an act that would be an unlawful labor practice" under Title VII, 42 USC § 2000e-7.

  • The guide concludes with best practices for employers.


The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination in the workplace based on race, color, religion, sex, or national origin.1 This Compliance Guide is published as part of the Commission's efforts to Eliminate Unlawful Discrimination in Employment Selection, Hiring, or Retention by Title VII Corporations, including Private Employers and Federal, State, and Local Governments.2

In the last two decades, there has been a significant increase in the number of Americans exposed to the criminal justice system3 and, with it, a sharp increase in the number of people with criminal records in the working-age population.5 In 1991, only 1.8% of the adult population was full-time.6 After ten years, in 2001, the percentage increased to 2.7% (1 in 37 adults).7 By the end of 2007, 3.2% of all adults in the United States (1 in 31) were under some form of correctional control that included probation, probation, arrest, or incarceration.8 The Department of Justice's Bureau of Justice Statistics (DOJ/BJS) concluded that if Incarceration rates are not declining, approximately 6.6% of all people living in 2001 Born in the United States will spend some time in state or federal prisons during their lifetime.9

Arrest and incarceration rates are particularly high among African American and Hispanic men.10 Black and Hispanic men11 are being arrested at a rate that is 2-3 times that of the general population.12 Assuming that incarceration rates As current rates remain unchanged, approximately 1 in 17 white men are expected to serve life in prison;13 in contrast, this rate rises to 1 in 6 for Hispanic men; and 1 in 3 for African-American men.14

The Commission, which has enforced Title VII since its enactment in 1965, has established guidelines that apply Title VII principles to the use of criminal records by employers in job searches. published over twenty years ago. In light of increasing employer access to criminal record information, case law revising Title VII requirements for expungement, and other developments,16 the Commission has decided to update and consolidate all of its previous policy statements on Title VII and its use in this document Criminal records in hiring decisions. Therefore, this Implementing Directive will supersede the Commission's previous policy statements on this subject.

The Commission intends to use this document by employers considering the use of criminal records in their selection and retention procedures; by people who suspect they have been denied a job or promotion, or fired because of their criminal record; and by EEOC officials investigating discrimination claims related to the use of criminal records in hiring decisions.

third background

The contextual framework for the Title VII discussion in this Compliance Guide includes how criminal history information is collected and recorded, why employers use criminal records, and the EEOC's interest in such criminal history checks.

A criminal record

Criminal history information may be obtained from a variety of sources, including, but not limited to, the following:

  • court records. Courts maintain records of criminal charges and convictions, including charges, verdicts, guilty pleas, and other orders.17 Searching county court records generally provides the most complete criminal history.18 Many county court records must be retrieved in the act,19 but some courts provide for submitting your files online.20 Information on federal crimes such as interstate drug trafficking, financial fraud, bank robbery, and crimes against the government can be found in federal court records online by searching Publicly Accessible Electronic Records or Federal Court Proceedings/Electronic Files.21
  • Correctional agency and law enforcement records. Law enforcement agencies, such as Government agencies, such as state law enforcement and corrections agencies, may allow public access to their records, including records of complaints, investigations, arrests, indictments, and terms of detention, probation and probation.22 Each agency may differ in how and where records are searched, can be used, and whether they are indicated.23
  • records or watch lists. Some government agencies maintain publicly available lists of people convicted or suspected of having committed a specific type of crime. Examples of such lists include state and federal sex offender registries and lists of persons with outstanding warrants.24
  • State Criminal Record Files. Most states maintain their own centralized criminal history files, which contain the records filed by most or all criminal justice agencies, including county courts. 27 how often they are updated,28 and whether they allow the public to search records by name, fingerprints, or both.29 Some states allow employers (or third parties acting on their behalf) to access these records, often for a fee. 30 Others restrict access to certain types of records,31 and still others deny access altogether.32
  • The interstate identification index (III). The Federal Bureau of Investigation (FBI) maintains the most comprehensive criminal history collection in the country, known as the Interstate Identification Index (III). Database III collects records from each of the state repositories, as well as records from federal and international criminal justice agencies.33

    The FBI III database can be accessed for employment purposes through:

    • the federal government;34
    • Employers in certain federally regulated industries, such as "banking, nursing homes, securities, nuclear power, and private security, as well as federally mandated security screening of airport employees, HAZMAT truck drivers, and other airport workers." transportation";35 and
    • Entrepreneurs in certain industries "that the State has tried to regulate, such as the

Recent studies have found that a significant number of federal and state criminal history databases contain incomplete criminal records.

  • A 2011 DOJ/BJS study reported that, as of 2010, many state criminal record storage locations had yet to file final warrants for a significant number of arrests.37

  • A 2006 DOJ/BJS study found that only 50% of arrest records in the FBI III database were linked to a final warrant. 38

Additionally, reports have documented that criminal records may be inaccurate.

  • According to a report, while public access to criminal records has been restricted by a court order to seal and/or delete such records, this does not guarantee that private companies will also delete the information from their systems or that the event will be deleted. of media files.39

  • Another report found that criminal record checks can produce inaccurate results because criminal records may lack "unique" information or because of "misspellings, typographical errors, or intentionally inaccurate identifying information provided by research participants to discover their activity." criminal past".

Employers who perform background checks to verify applicants or employees can try looking at these government sources or doing a simple Internet search, but they often rely on third-party background check companies.41 Companies that sell background information employers are "agencies". for Consumer Reporting Reports” (CRA)42 when they use information from “Consumer Reports”43 under the Fair Credit Reporting Act, 15 U.S.C. Sections 1681 et seq. (FCRA). Under the FCRA, a CRA generally cannot report arrest records that did not result in a conviction if the arrests were older than seven years.44 However, they can report convictions indefinitely.45

Rating agencies often maintain their own proprietary databases that collect information from different sources, such as those described above, depending on the extent to which the company purchased or had access to the data.46 These databases differ in terms of area geographic coverage Type of information included (e.g., information about arrests, convictions, prison sentences, or information specific to a subset of employers, such as information about workplace theft or shoplifting among retail employers47), Information sources used (eg, county databases, law enforcement agencies). registries, sex offender registries) and how often they are updated. They also may not have certain types of disposition information, such as B. updated convictions, seal or purge orders, or orders to participate in a diversion program.48

B. Use of Criminal History Information by Employers

In one survey, as many as 92% of employers surveyed said they had conducted criminal background checks on some or all of their job applicants.49 Employers reported that the use of criminal history information was related to ongoing efforts to combat theft and fraud50 as well. such as increased concerns about violence in the workplace,51 and potential liability for negligent hiring.52 Employers also cite federal, state, and local laws53 as reasons for using criminal background checks.

C. EEOC's Interest in Employers' Use of Criminal Records in Job Selection

The EEOC enforces Title VII, which prohibits discrimination in the workplace based on race, color, religion, sex, or national origin. Criminal history is not listed as a protected basis under Title VII. Thus, whether an employer's reliance on a criminal record to refuse employment violates Title VII depends on whether it is part of a claim of discrimination based on race, color, religion, sex, or national origin. Liability under Title VII for employment discrimination is determined using two analytical frameworks: 'unequal treatment' and 'unequal impact'. Discrepancies are discussed in Section IV and unequal effects in Section V.

4. Sensitive treatment, discrimination and criminal record

A covered employer is liable for a Title VII violation if the claimant proves that it treated you differently because of your race, national origin, or some other protected basis. rejected an African-American candidate based on his criminal record, but hired a similarly situated white candidate with a comparable criminal record.55

Example 1: Different treatment based on race. John, a Caucasian, and Robert, an African American, recently graduated from State University. They have similar educational backgrounds, skills, and work experience. All pleaded guilty to possessing and distributing marijuana as high school students, and none of them were later exposed to the criminal justice system.

After college, they both apply for jobs at Office Jobs, Inc., who, after brief interviews, get their approval to run a background check. Based on the result of the background check, which reveals his drug convictions, a representative of Office Jobs, Inc. decides not to recommend Robert for a follow-up interview. The representative told a colleague that Office Jobs, Inc. cannot afford to refer "these kinds of drug dealers" to client companies. However, the same representative referred John for an interview, stating that John's youth at the time of the conviction and his subsequent lack of exposure to the criminal justice system made the conviction irrelevant. Office Jobs, Inc. treated John and Robert differently based on their race, in violation of Title VII.

Title VII prohibits "not only decisions motivated by racial [or ethnic] animosity, but also decisions infected by stereotyped thinking..."56 Thus, an employer's decision to reject a job applicant on the basis of racial or ethnic stereotypes about crime - qualifications and suitability for office: is this an unlawful difference in treatment that violates Title VII.57?

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Example 2: Different treatment based on national origin. Tad, a Caucasian, and Nelson, a Latino, recently graduated from high school with a GPA above 4.0 and plan to go to college. While Nelson successfully worked full-time for a landscaping company during the summer months, Tad only took odd jobs as a lawn mower and camp attendant. In an interview for a research paper with Meaningful and Paid Internships, Inc. (MPII), Tad reveals that he pleaded guilty to a felony at age 16 for several months of unauthorized access to his school's computer system and had changed the direction of his classmates. . Grades. Nelson, in an interview with MPII, highlights his previous successful work experience, of which he has good references, but also reveals that at the age of 16 he confessed to having assaulted his school in a class mischief that caused damage to his minors. his school property. Neither Tad nor Nelson had any subsequent contact with the criminal justice system.

Despite his criminal record, the MPII hiring manager invites Tad in for a second interview. However, the same hiring manager sends Nelson a rejection letter, telling a colleague that Nelson is only qualified for menial jobs and that he, too, has a criminal record. In light of evidence showing that Nelson's and Tad's educational backgrounds are similar, that Nelson's work experience is more extensive, and that Tad's criminal behavior is more indicative of a lack of trust, MPII did not provide any legitimate or discrimination to reject Nelson. If Nelson were to file a Title VII charge alleging unequal treatment based on national origin, and EEOC's investigation confirms those facts, EEOC would have reasonable grounds to believe that discrimination occurred.

There are several types of evidence that can be used to determine what race, national origin, or other protected characteristic prompted an employer's use of a criminal record in a selection decision, including, but not limited to:

  • Biased statements. Statements by the employer or decision maker that disparage the prosecuting party's protected group or express group stereotypes about the crime may be evidence that such bias influenced the applicant's or worker's criminal record evaluation.

  • Inconsistencies in the hiring process. Evidence that the employer more frequently requested criminal information from individuals of a particular racial or ethnic origin, or provided white but non-racial minorities the opportunity to explain their criminal history, would support a demonstration of unequal treatment.

  • Comparable comparators (individuals who are similar to the offending party in relevant respects, with the exception of membership in the protected group). Comparators can include people in similar positions, former employees, and people selected for a position above the collector. The fact that an accusing party is treated differently from persons who do not belong to the accused party's protected group, for example, through more or different criminal background checks or different criminal investigation evaluation standards, would be evidence of differential treatment.

  • proof of employment Aligned peer-to-peer tests may reveal that applicants are treated differently due to protected status.58

  • Statistical evidence. Statistical analysis derived from an examination of applicant data, workforce data, and/or third-party criminal history data can help determine whether the employer is more likely to count criminal history data against members of a protected group.

V. Triggered Impact Breakdown y Strafregister

A Covered Employer is liable for a Title VII violation if the complainant establishes that the employer's neutral policy or practice results in a disproportionate evaluation of a Title VII protected group and the employer fails to establish that the policy or practice is related with the work in the position is questionable and in accordance with the needs of the company.59

In his Griggs v. Duke Power Company Act of 1971, the Supreme Court recognized for the first time that Title VII may invoke differential effects.60 The Griggs Court stated that “[Title VII] prohibits...Touchstone is the business necessity of taking steps to exclude [to African Americans] cannot be shown to be related to job performance, the practice is prohibited.”61 In 1991, Congress amended Title VII to codify this analysis of discrimination and its burden of proof.62 Title VII , as amended, establishes:

An illegal labor practice is established based on different effects. 🇧🇷 🇧🇷 when a complaining party demonstrates that an employer engages in a particular employment practice that produces differential effects based on race, color, religion, sex, or national origin, and the defendant fails to demonstrate that the disputed practice is related with the work to work question and in line with the needs of the business. 🇧🇷 🇧🇷 .63

With respect to criminal records, Title VII liability has different implications when evidence shows that a covered employer's criminal history check policy or practice disproportionately excludes a group protected under Title VII and the employer fails to demonstrate that the policy or practice conflicts with work-related standards. for the positions in question and according to the needs of the company.

A. Determining the suppressive effects of policies or practices that screen individuals based on records of criminal conduct

1. Identify the policy or practice

The first step in the extraneous impact analysis is to identify the specific policies or practices that are causing the illegal extraneous impacts. For criminal conduct exclusions, relevant information includes the wording of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. More specifically, this information also includes what crimes or types of crimes were reported to the employer (eg, all crimes, all drug-related crimes); whether any convictions (including sealed and/or vacated convictions), arrests, indictments or other criminal incidents have been reported; how far back the reports go (for example, the last five, ten, or twenty years); and the entities for which the criminal history check was conducted.64 Training or orientation documents used by the employer are also relevant, as they may indicate what types of criminal history information to collect for specific entities, such as data that is collected and how they are collected. information evaluated once obtained.

2. Determination of the triggered impact

Nationally, African Americans and Hispanics are arrested at rates disproportionate to their percentage of the total population. In 2010, 28% of all arrests were of African Americans,65 despite the fact that African Americans made up only about 14% of the total population66 of the general population.67 In addition, African Americans and Hispanics were more likely than whites to of being arrested, convicted, or convicted of drug offenses, even though their rate of drug use was similar to the rate of drug use among whites.68

African Americans and Hispanics are also being incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the US Department of Justice estimated in 2001 that 1 in 17 white men (5.9% of white men in the US) will go to prison at some point in their lifetime. , assuming current incarceration rates remain unchanged. 69 This rate increases to 1 in 6 (or 17.2%) for Hispanic men.70 For African-American men, the expected incarceration rate increases to 1 in 3 (or 32.2%). In 2005, African Americans were incarcerated at an incarceration rate 5.6 times that of whites,72 and 7 states had a black to white incarceration ratio of 10 to 1.73, 3 times that of whites. Hispanic men.74

National data, such as those cited above, support the conclusion that expungement has different effects based on race and nationality. The national data provides a basis for the Commission to further investigate these different impact loads under Title VII. During an EEOC investigation, the employer also has the opportunity to provide relevant evidence that its employment policies or practices do not have a disparate impact on protected groups. For example, an employer may provide regional or local data showing that African American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer's specific geographic area. An employer can also use its own candidate data to show that its policy or practice did not have a different impact. The Commission evaluates the relevant evidence to determine the different impacts, including information on the flow of applicants managed in accordance with the uniform guidelines for employee selection processes75, personnel data, criminal record check data, availability statistics, demographic data, arrest/conviction data, and/or relevant data from labor market statistics.76

Evidence from one employer of a racially balanced workforce will not be sufficient to refute the differential impact. In Connecticut v. Teal, the Supreme Court ruled that a "result" of racial distribution in the workforce does not preclude employees from making a prima facie case of differential impact; nor does it offer employers a defense.77 The question is whether the policy or practice deprives a disproportionate number of people protected by Title VII of employment opportunities.78

Finally, when determining the differential impact, the Commission will assess the probative value of the applicant's data from the employer. Like the Supreme Court in Dothard v. Rawlinson, "an employer's application process may not adequately reflect the actual pool of potential applicants because qualified individuals may be deterred from applying because of an alleged discriminatory policy or practice."79 Therefore, the Commission will examine whether an employer has a reputation in the community for excluding people with criminal records. Relevant evidence may include, but is not limited to, ex-offender employment programs, individual testimonials, employer statements, evidence of employers' hiring practices, or publicly posted notices.80 The Commission will assess the persuasiveness of such evidence on a case-by-case basis. . -base of cases. . .

B. Related to the job of the position in question and consistent with business needs

1. General

After the plaintiff found a differential effect, Title VII shifts the burden of production and persuasion to the employer to "demonstrate that the disputed practice is job-related for the position at issue and is consistent with business necessity." In 1991, Congress designated Griggs and his descendants as the Albemarle Paper Company v. Moody82 and Dothard83 to explain how that standard should be interpreted.84 The Griggs Court held that the employer's duty was to show that the policy or practice was such that it "has a demonstrable relationship to the successful performance of the jobs for which it was designed." ". and "measures the person for the job and not the person in the abstract." Factual nature of the business needs assessment. The court further noted in Dothard that the terms of the exclusion policy "must demonstrate that they are necessary to the safety and efficient execution of the work”.88

In a case involving expungement, the Eighth Circuit, in its case Green v. The Missouri Pacific Railroad Act of 1975 found it discriminatory under Title VII for an employer to "follow the policy of barring employment of any applicant with a felony conviction other than a minor traffic violation." 89 The Eighth Circuit identified three factors (the “green factors”) relevant to assessing whether an exclusion is job-related in the position at issue and compatible with the needs of the organization:

  • nature and seriousness of the offense or conduct;90
  • The time elapsed since the commission of the crime or conduct and/or the execution of the sentence; 91 and
  • The type of work performed or planned.92

In 2007 the Third Circuit in El v. The Southeastern Pennsylvania Transportation Authority93 further developed the analysis required by law. Douglas El questioned SEPTA's policy of prohibiting anyone convicted of a violent crime from working as a paratransit driver. murder 40 years ago; The conviction involved a gang fight at age 15 and was his only disqualifying offense under the SEPTA policy.95 The Third Circle expressed “reservations” about policies like SEPTA (exclusion of all violent crimes, regardless of how long ago that were committed). ) "in the abstract".96

Using Supreme Court precedent, the El Court found that some degree of risk is unavoidable in all hiring and that "generally speaking, hiring policy...is at the heart of expungement," the Third The Circuit concluded that Title VII requires employers to justify expungements by demonstrating that they “accurately distinguish between applicants [who] present an unacceptable level of risk and those [who] do not.”98

The Third Circuit upheld SEPTA's summary judgment, but noted that the outcome of the case would have been different if Mr. Hatte El "hired an expert witness, for example, who testified that there was a time when an ex-offender reoffended no more than normal". , … [therefore] there would be a question of fact for the jury to decide.” The position in question – potential paratransit driver with unsupervised access to vulnerable adults – required the employer to exercise the utmost diligence let.100

In the following subsections, the Commission discusses relevant considerations to assess whether expungement policies or practices are job-related and consistent with business needs. First, we note that arrests and convictions are treated differently.

2. Prisons

The fact of an arrest does not constitute criminal conduct.101 Arrests are not evidence of criminal conduct. Many arrests result in criminal charges or charges are dropped.102 Even if a person is charged and later prosecuted, they are presumed innocent unless proven guilty.103

However, in certain circumstances, an arrest may trigger an investigation into whether the conduct that led to the arrest warrants adverse employment legal action. Title VII requires a factual analysis to determine if an exclusionary policy or practice is job related and consistent with a business necessity. Therefore, a debarment for arrest is not itself job related and is compatible with the needs of the Company.

Another reason employers do not trust arrest records is that they may not report the final arrest warrant (for example, not prosecuted, convicted, or acquitted). As described in Section III.A. As previously documented, the DOJ/BJS reported that many arrest records in the FBI Database III and state criminal history files are not linked to the final dispositions.104 Arrest records may also contain inaccuracies or continue to be reported. even when erased or sealed.105

Example 3: Arrest warrant is not grounds for exclusion. Mervin and Karen, a middle-aged African-American couple, drive to church in a mostly white town. An officer stops her and questions her about her fate. When Mervin becomes irritated and realizes that his crime is simply "driving in black", the officer arrests him for disorderly conduct. Prosecutors decide not to press charges against Mervin, but the arrest remains in the police department's database and is reported in a background check when Mervin applies for promotion to a management position at his employer of fifteen years. Business practice denies promotions to people with a criminal record, even without a conviction, because it views a criminal record as an indicator of unreliability and irresponsibility. If Mervin brings a Title VII charge based on these facts and a differential effect based on race is found, the EEOC would have reasonable grounds to believe that his employer violated Title VII.

While an arrest record alone cannot be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the person unsuitable for the job in question. The conduct, not the arrest, is relevant for employment purposes.

Example 4: Employer investigation of conduct underlying the arrest. Andrew, Latino, worked as an assistant principal at the elementary school for several years. After several 10- and 11-year-old girls attending the school accused him of inappropriately touching their breasts, Andrew was arrested and charged with multiple counts of endangering child welfare and sexual abuse. The elementary school has a policy that requires the suspension or dismissal of any staff member the school believes is engaging in behavior that affects the health or safety of students. Upon learning of the allegations, the school immediately places Andrew on administrative leave without pay pending investigation. During the course of investigating him, the school offers Andrew the opportunity to explain the events and circumstances that led to his arrest. Andrew denies the allegations, saying that he may have met the girls in the crowded hallways or in the cafeteria, but he doesn't really remember the incidents and hasn't been in regular contact with any of the girls. The school also talks to the girls, and some of them say they touch each other in crowded situations. The school does not believe that Andrew's explanation is credible. Due to Andrew's behavior, the school terminated his contract in accordance with Andrew's policy.

Andrew questions the policy as discriminatory under Title VII. He claims that his nationality affects him differently and that his employer cannot suspend or fire him solely on the basis of arrest without conviction, as he is innocent until proven guilty. After confirming that a prison policy would have different effects based on national origin, the EEOC concludes that there was no discrimination. School policies are tied to behaviors relevant to the jobs in question, and expulsion is based on the descriptions of the underlying behavior, not the fact of the arrest. The Commission finds no reasonable reason to believe that Title VII has been violated.

3. Convictions

On the other hand, given the procedural safeguards associated with trials and guilty pleas, a conviction record generally serves as sufficient evidence that an individual engaged in particular conduct.106 However, there may be indications of error in the record. , p. an outdated record or other reason for not relying on the evidence of a conviction. For example, a database might continue to report a conviction that was later vacated, or it might continue to report as a felony a crime that was later downgraded to a misdemeanor107

Some states require employers to wait until the end of the screening process to ask about convictions.108 The rationale for this policy is that an employer is more objective in assessing the relevance of an applicant's conviction if it is disclosed when the employer already knows it. the candidate knows. qualifications and experience.109 As a best practice and in accordance with applicable law,110 the Commission recommends that employers not ask about convictions on applications and that, when they do ask such questions, investigations be limited to convictions that would remain excluded. Activity related to the activity in question and compatible with the needs of the business.

4. Determine if a criminal disqualification is job related and compatible with business needs

To determine that a criminal conduct with various impacts exclusion is job-related and consistent with a business necessity under Title VII, the employer must demonstrate that the policy is intended to effectively link the specific criminal conduct and its dangers to the risks inherent in a certain position.

Two circumstances in which the Commission believes employers will consistently respond to the "job-related and consistent with business necessity" defense are as follows:

  • The Employer validates the Criminal Conduct Verification for the relevant job in accordance with the standards of the Uniform Guidelines for Employee Selection Procedures (Uniform Guidelines) (if data on criminal behavior related to subsequent job performance are available and said validation is possible); 111 or

  • The employer develops a specific assessment that takes into account at least the type of crime, the time elapsed and the type of work (the three green factors), and then provides the opportunity for an individual assessment of those who are excluded from the assessment to identify Whether the policy being applied is job related and consistent with business needs.

The individualized evaluation would consist of telling the person that they were removed because of a criminal conviction; an opportunity for the person to show that the exclusion should not apply because of the person's particular circumstances; and Employer verification that the additional information provided by the individual warrants an exception to the exclusion and demonstrates that the policy being used is not job related and consistent with business necessity. See Section V.B.9, below (examples of relevant considerations in individualized assessments).

Depending on the circumstances, an employer may warrant a criminal background check based solely on the green factors. This review would have to be strictly designed to detect criminal conduct with a demonstrably close connection to the position in question. Therefore, Title VII does not necessarily require an individual evaluation in all circumstances. However, the use of individual reviews can help employers avoid Title VII liability by allowing them to consider more complete information about individual applicants or employees as part of a job-related policy that meets business needs.

5. Validation

The uniform guidelines describe three different approaches to validating work screens. 112 However, they acknowledge that "[t]here are circumstances where a user cannot or need not use formal validation techniques" and that in such circumstances an employer "can use a Selection should employ procedures that are as professionally related as possible." and minimizing or eliminating adverse effects as set forth [in the following subsections],114 and thus providing a framework for validation of some professional disqualifications are such studies at the time of writing rarely this document.

6. Detailed discussion of environmental factors and detection of criminal behavior.

In the absence of a validation study that meets Uniform Guidelines standards, the Green Factors provide the starting point for analyzing how specific criminal behavior may be associated with specific job titles. The three green factors are:

  • the nature and seriousness of the offense or conduct;
  • The time elapsed since the crime, conduct and/or execution of the sentence; Y
  • The type of work performed or planned.
a. The nature and seriousness of the offense or conduct.

Careful consideration of the nature and seriousness of the offense or conduct is the first step in determining whether a particular offense may be relevant to concerns about the risks in a particular position. The nature of the crime or conduct can be judged by the damage caused by the crime (eg theft resulting in loss of property). The legal elements of a crime can also be revealing. For example, a conviction for robbery may involve fraud, threats, or intimidation.115 In terms of the seriousness of the crime, crimes classified as misdemeanors may be less serious than those classified as felonies.

B. The time elapsed since the crime, conduct and/or sentence was completed

Employer policies often specify the duration of a criminal disqualification. Although the Green court did not approve a specific time frame for criminal disbarment, it recognized that permanent bars from any employment for any criminal offense were not consistent with the business necessity standard.116 Later, in El, the court found that the plaintiff could have survived summary judgment had he presented evidence that "there comes a time when an ex-offender will not reoffend at a higher rate than the average person..."117 the time elapsed since the criminal conduct occurred of the offender was evidence of the risk he represented in the position in question.

Whether the duration of an exclusion is sufficiently tailored to business needs will depend on the specific facts and circumstances of each individual case. The relevant information available for this evaluation includes, for example, studies that show how much the risk of recidivism decreases over a period of time118

C. The type of work performed or planned.

Finally, it is important to identify the specific activity(ies) that will be excluded. While a factual investigation may begin with the identification of the job, it also includes the nature of the job functions (eg, data entry, cash withdrawal), identification of the essential functions of the job, the circumstances in which the work is performed (eg, supervision, control, and interaction with colleagues or vulnerable individuals) and the environment in which the work functions are performed (eg, outdoors, in a warehouse, in a private home) . Linking criminal behavior to the core functions of the entity in question can help an employer demonstrate that its policy or practice is job-related and consistent with a business necessity because it "has a demonstrable link to the successful performance of the job performed." ". 119

7. Examples of exclusions of criminal behavior that do not take environmental factors into account

A policy or practice that requires automatic and blanket exclusion from all employment opportunities for criminal behavior is inconsistent with green factors because it does not address the dangers of specific crimes and the risks of specific jobs. As the court in Green recognized, "we cannot imagine any business necessity that would automatically place all persons convicted of any offense other than misdemeanor traffic into the permanent ranks of the unemployed."120

Example 5: The removal is not work related and in line with business needs. National Equipment Rental Company uses the Internet to accept applications for all positions. All applicants must answer a few questions before submitting their online application, including "Have you ever been convicted of a criminal offense?" If the applicant answers "Yes", the online application process ends automatically and the applicant sees a screen with the simple inscription "Thank you for your interest". We are currently unable to continue processing your request."

The company has no record of why it accepted this disqualification and has no information to show that convictions for all crimes put all applicants at unacceptable risk in all their jobs, from warehouse work to delivery to management. If a Title VII charge were brought on the basis of these facts and there was a differential impact on a basis protected by Title VII, the EEOC would find reasonable grounds to believe that the blanket exclusion was not job-related and was job-related. business The need is consistent, given the risks involved, not all beliefs are relevant to all positions in the organization.

Example 6: The removal is not work related and in line with business needs. Leo, an African American, has been working successfully as an account manager at the public relations agency for the past three years. After a change of ownership, the new owners have a policy of not hiring anyone with beliefs. The policy does not allow individual review prior to removal. Highly respected in the industry, the new owners pride themselves on hiring only the "best of the best" for each role. The owners say that a skilled workforce is a key factor in profitability.

Twenty years earlier, as a teenager, Leo had pleaded guilty to one count of assault. Over the next twenty years, Leo completed college and, with no further contact with the criminal justice system, successfully worked in advertising and public relations. At the public relations agency, all of Leo's supervisors rated him as a talented, trustworthy, and trustworthy employee, and he never posed a risk to people or property at work. However, when the new owner of the PR agency learns of Leo's criminal record through a background check, he terminates Leo's contract. He refuses to reconsider his decision, despite Leo's positive work history at the public relations agency.

Leo files a Title VII charge alleging that the public relations agency's sentencing policies have various racial implications and are unrelated to the position at issue and consistent with business imperatives. After verifying the differential impact, the EEOC sees the defense of the public relations agency that it only uses the "best of the best" for each position and that this requires the exclusion of all with conviction. The public relations agency does not show that all the judgments under the green factors indicate risk or danger at all times in all their work. The public relations agency also does not provide any factual basis for its claim that a conviction necessarily indicates poor work or a lack of professionalism. The EEOC concludes that there are reasonable grounds to believe that the agency's policy for the position in question is unprofessional and consistent with business necessity. 121

8. Specific exclusions based on ecological aspects

An employer's policy or practice of excluding individuals from certain positions for specific criminal conduct within a specified period of time, as indicated by Green Factors, is targeted exclusion. Specific exclusions will be tailored to the justification for their acceptance, taking into account the specific criminal acts and jobs involved, taking into account factual evidence, legal requirements and/or relevant and available studies.

As discussed above in Section V.B.4, depending on the facts and circumstances, an employer may warrant a specific criminal history check based solely on environmental factors. This review would have to be strictly designed to detect criminal conduct with a demonstrably close connection to the position in question. Therefore, Title VII does not necessarily require an individual evaluation in all circumstances. However, the use of individual reviews can help employers avoid Title VII liability by allowing them to consider more complete information about individual applicants or employees as part of a job-related policy that meets business needs.

9. Individual evaluation

Individualized evaluation usually means that an employer informs the person that they may be excluded due to prior criminal activity; gives the person a chance to prove that the exclusion does not really apply to them; and verifies that additional information from the individual demonstrates that the applied policy is not job related and consistent with business needs.

The person's report may contain information that the person's criminal record was not properly identified or that the record is inaccurate. Other relevant individual tests are, for example:

  • The facts or circumstances related to the crime or conduct;
  • The number of crimes for which the person has been convicted;
  • Older age at the time of conviction or release from prison; 122
  • Evidence that the person, after conviction, performed the same type of work for the same or a different employer without known incidents of criminal conduct;
  • The extent and consistency of the employment history before and after the offense or conduct; 123
  • rehabilitation efforts, eg education/training; 124
  • Employment or personal references and any other information related to suitability for the position;125 and
  • Whether the person belongs to a federal, state or local program. 126

If the person does not respond to the employer's attempt to collect additional background information, the employer may make its hiring decision without the information.

Example 7: Targeted recruitment with individualized assessment is job related and meets business needs. The County Community Center rents meeting rooms for civic organizations and small businesses, ballrooms for families and social groups, and sports facilities for local recreational sports leagues. The county has a special rule that prohibits any person convicted of a theft offense (eg, larceny, burglary, shoplifting, identity theft) from being in a position with access to personal financial information for at least four years after sentence or liberation work. This rule was adopted by the County Human Resources Department based on data from the County Department of Corrections, national crime data, and recent robbery recidivism surveys. The Community Center also provides an opportunity for individuals identified for exclusion to provide information showing that the exclusion should not apply to them.

Isaac, who is Spanish, is applying for a full-time job at the community center as an administrative assistant, which involves accepting credit card payments for room rentals and providing unsupervised access to the personal belongings of those using the facilities. After a background check, the county determines that Isaac pleaded guilty to credit card fraud eighteen months earlier, at the age of twenty, and did not serve prison time. Isaac confirms these facts, points out the restaurant where he now works on Saturday nights, and asks Condado for a "second chance" to prove he can be trusted. The county tells Isaac that his application is still being denied because his criminal conduct took place eighteen months ago and is directly related to the position in question. The information he provided did not allay the county's concerns.

Isaac disputes this Title VII denial, arguing that the policy affects Hispanics differently and is unrelated to work and consistent with business imperatives. After confirming the differential impacts, the EEOC notes that this review was carefully designed to assess unacceptable risks in relevant roles for a limited period of time and consistent with the evidence, and that the policy avoided broad exclusions by giving people the opportunity . Also, explain special circumstances in connection with your criminal conduct. Although the policy has various effects on Hispanics, the EEOC finds no reasonable reason to believe that the discrimination occurred because the policy is job-related and consistent with business necessity. 127

Example 8: Targeted removal without individual assessment is not job related and consistent with business needs. Shred 4 You employs more than 100 people to collect discarded files and confidential office supplies, transport the materials to a secure facility, and shred and recycle them. The owner of Shred 4 You sells the company to a competitor called We Shred. Shred 4 Your employees must reapply for a job with We Shred and pass a background check. We Shred has a specific criminal conduct exclusion policy that prohibits the employment of anyone convicted of a crime involving theft or fraud within the past five years, and the policy does not provide for individual consideration. The company states that its clients entrust it with the handling of sensitive and confidential information and materials; Therefore, you cannot afford to hire employees who present a higher-than-average risk of information theft.

African-American Jamie worked successfully for Shred 4 You for five years before the company changed hands. Jamie applies for his old job and "We Shred" reviews Jamie's performance reviews, which include high marks for his trustworthiness, trustworthiness, and honesty. However, when "We Shred" runs a background check, it is revealed that Jamie pleaded guilty to insurance fraud five years ago for overstating the cost of various home repairs after a winter storm. We Shred management informs Jamie that his guilty plea is evidence of criminal behavior and that his employer will be fired. Jamie asks management to consider his credible and honest performance of the same job on Shred 4 You, but We Shred refuses. The employer's conclusion that Jamie's guilty plea shows that he poses a greater risk of dishonesty is factually unsupported given that Jamie is reliable in the same position. Having confirmed the differential impact based on race (African American), the EEOC has reasonable grounds to believe that Title VII was violated since the specific exclusion was not job related and, as such, consistent with business necessity.

C. Less discriminatory alternatives

If an employer successfully demonstrates that its policy or practice for the job in question is job-related and consistent with business necessity, a Title VII claimant can still prevail by showing that a less discriminatory "alternative employment practice" exists. that meets the legitimate objectives of the employer is only as effective as the challenged practice that the employer has refused to adopt.128

HE SAW. Jobs subject to federal prohibitions or restrictions for individuals with a history of specific criminal activity

In some industries, employers are subject to state statutes and/or regulations that prohibit people with certain criminal records from holding certain jobs or practicing certain occupations. Compliance with federal laws and/or regulations is a defense against a charge of discrimination. However, the EEOC will continue to coordinate with other federal departments and agencies with the goal of maximizing federal regulatory consistency regarding the use of criminal history information in hiring decisions.129

A. Contracting in Specific Industries

Federal laws and regulations govern the employment of people of certain beliefs in certain industries or positions in the public and private sectors. For example, federal law prohibited a person convicted of certain crimes in the past ten years from working as a security inspector or from entering secure areas at an airport without escort.130 Equivalent requirements exist for federal police officers,131 federal security workers. child care, or establishments,132 bank employees,133 and stevedores,134 among other elements.135 Title VII does not override these restrictions imposed by the federal government. However, if an employer chooses to impose an exclusion beyond the scope of a federally imposed restriction, the discretionary aspect of the policy would be subject to a Title VII review.

Example 9: The removal is not job related and in line with business needs. Your bank has a rule that prohibits people convicted of any type of financial crime or fraud in the last twenty years from working in positions with access to customer financial information, although the federal ban is ten years for people convicted of a crime related to dishonesty or breach of trust or money laundering through the exercise of said charges.

Sam, a Latino, applies to Your Bank to be a customer service representative. A background check reveals that Sam had been convicted of a misdemeanor and misrepresenting his income on a loan application fifteen years earlier. So, his bank turns Sam down and he files a Title VII complaint with the EEOC, alleging that the bank's policies have different implications based on national origin and are not job related and consistent with business demands. . Your bank claims that your policy has no differential implications and that even if it does, it is related to the job of the position in question, since customer service agents need regular access to financial information and depositors must have a " 100% confidence" that your money is safe. However, his bank offers no evidence that someone who has been crime-free for more than ten years has a high probability of committing financial crimes. Having determined that the Bank's policies have different effects based on national origin, the EEOC believes that the policy for the position in question is unrelated to the job and consistent with the needs of the business. The bank's justification for extending the state-imposed ban by 10 years is inadequate, as it only addresses general security concerns without any evidence.

B. Acquisition of professional permits

Title VII also does not replace federal laws and regulations governing eligibility for professional licenses and registrations. These restrictions affect several economic sectors, including the transport sector136, the financial sector137 and import/export activities138,139

C. Exemption or Relief from Federal Occupational Restrictions

Various federal laws and regulations provide a mechanism for employers or individuals to appeal or request waivers of occupational restrictions imposed by the federal government. For example, unless a bank obtains the prior written consent of the Federal Deposit Insurance Corporation (FDIC), a person convicted of a crime involving dishonesty, breach of trust, money laundering, or any other financial crime may not operate, own, or control “an insured depository institution” (for example, a bank) for ten years under the Federal Deposit Insurance Act.140 To obtain such approval from the FDIC, the insured institution must submit an application for waiver on behalf of the individual.141 Alternatively, the insured institution may use the If a waiver is not requested on behalf of the individual, the individual may apply directly to the FDIC for waiver of the institution's filing requirement and demonstrate a “good cause” to grant the waiver.142 If the waiver is granted by the FDIC, the person applying for the waiver The individual can give n Apply directly to the an FDIC work permit for the covered entity in question.143 Once the entity or individual files the application, the FDIC review process for the criminal record waiver requires consideration of mitigating factors consistent with Title VII, including the evidence of rehabilitation and the nature and circumstances of the offence.144

In addition, longshore workers who are denied a TWIC (Transportation Worker Identification Card) based on their conviction history may request a waiver of certain crimes that disqualify them permanently or provisionally and may also request an individual appeal. against determination based on conviction.145 The Shipping Security Act, which requires all longshoremen to undergo a criminal records check to obtain a TWIC,146 provides that persons with criminal offenses such as espionage, treason, murder, and a federal crimes committed by terrorists are permanently barred from obtaining identification, but individuals convicted of offenses involving firearms and distribution of controlled substances may be subject to temporary disqualification.147 Most dishonesty-related offenses do not provide a temporary disqualification.148

Example 10: Consideration of State Occupational Restrictions. John Doe applies to Truckers USA for a job as a trucker. John's responsibilities include moving cargo to, from and around ports, and Truckers USA requires all port truck drivers to have a TWIC. The Transportation Security Administration (TSA) conducts criminal background checks and may deny accreditation to applicants with criminal records that are permanently disqualified under federal law. After running a background check on John Doe, TSA discovers that he was convicted nine years earlier of conspiracy to use weapons of mass destruction. TSA denies John a security card because it is a permanently disqualifying offense under federal law.149 John, stating that he was a minor at the time of conviction, requests a waiver from TSA due to his limited involvement and without direct knowledge of the underlying offense at the time of the offence. John explains that he helped a friend transport some chemical materials that he later tried to use to damage government property. TSA denies John's waiver because a conviction for conspiracy to use weapons of mass destruction is not subject to TSA waivers.150 Based on this denial, Truckers USA denies John's request for a truck driver at the port . Title VII does not supersede Truckers USA policy because the policy is consistent with other federal laws.

Although Title VII does not require an employer to seek such exemptions, if an employer seeks exemptions, it must do so on a non-discriminatory basis.

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D. Security clearances

Having a criminal record can result in the denial of a federal security clearance, which is required for a variety of federal government positions and for federal government contractors.151 A federal security clearance is used to ensure trust, reliability and loyalty before it is issued with Access to National Security Classified Information.152 Under the Title VII national security exception, it is not illegal for an employer to “fail to hire or employ” a person because “that person fails to comply or no longer meets federal safety requirements.” .153 This exception focuses on whether the entity is actually subject to national security requirements imposed by federal statutes or executive orders, and whether the anti-employment action actually resulted from the denial or revocation of a security clearance.154 Related procedural requirements with security clearances must be followed. liquids without regard to a person's race, color, religion, sex, or national origin. 155

E. Work for the federal government

Title VII states that, with limited scope exceptions, “[all] personnel actions involving employees or applicants for employment…the principles discussed earlier in this Guide apply in the context of federal employment. In most cases, people with criminal records are not automatically barred from working for the federal government.157 However, the federal government does place criminal record restrictions on its employees through "fitness" requirements for certain jobs. .158 Federal Government Office of Human Resources Management (OPM) defines suitability as "based on statements about an individual's character or conduct that could adversely affect the integrity or efficiency of the service." Inappropriate based on criminal or dishonest conduct, among other factors. mitigating criteria for deciding whether a person is fit for federal office.161 These criteria are met. Candidates who meet all three green factors and also provide an individual evaluation of the candidate's background allow for consideration of: (1) the type of position for which the person is applying or in which the person is employed; (2) the nature and seriousness of the conduct; (3) the circumstances of the conduct; (4) the timeliness of the conduct; (5) the age of the data subject at the time of the conduct; (6) contribute to social conditions; and (7) the absence or existence of rehabilitation or rehabilitation efforts.162 In general, OPM requires federal agencies and departments to consider hiring an individual with a criminal record if they are the best candidate for the position in question and can fill the position. appropriate position. Position requirements.163 EEOC continues to coordinate with OPM to achieve best practices for employers in the federal sector.164

VII. Jobs subject to state and local bans or restrictions for people with a history of certain criminal activities

State and local jurisdictions also have laws and/or regulations that restrict or prohibit the employment of individuals with a history of certain criminal conduct.165 However, unlike federal laws or regulations, state and local laws or regulations are superseded by Title VII when] to require or permit the commission of an act that would constitute an unlawful labor practice” of Title VII.166 Thus, if an employer's exclusionary policy or practice is unrelated to work and consistent with business needs, the fact that it has been adopted complies with any state or local law or regulation does not relieve the employer of liability under Title VII.167

Example 11: The disqualification under state law is job related and consistent with business necessity. Elijah, an African-American man, applies for a job as a clerk at a preschool located in a state that imposes criminal records on school employees. The preschool, which employs 25 full-time and part-time employees, uses all of its employees to help with the children. The preschool runs a background check and discovers that Elijah pleaded guilty to indecent disclosure charges two years ago. After being rejected for office based on his conviction, Elijah files a mismatched Title VII charge based on race to challenge the preschool policy. EEOC conducts an investigation and determines that the policy has mixed effects and that the exclusion is professionally related to the position in question and consistent with business necessity as it addresses serious job security risks in a position that involves contact Regular with kids. As a result, the EEOC would not find reasonable grounds to believe that discrimination occurred.

Example 12: Removal under state law is not consistent with Title VII County Y is enforcing a statute that prohibits anyone with a criminal conviction from working for County Y. Chris, an African American, was convicted of welfare fraud fifteen years ago and has not been exposed to the criminal justice system since. Chris applies to County Y for a job as an intern with the animal control officer, a position that involves learning how to respond to citizen complaints and how to deal with animals. The county denies Chris's application once they learn that he has been convicted of a felony. Chris files a Title VII charge and the EEOC investigates, finding differential implications based on race and also that the exclusion policy is not job related and consistent with business necessity. The district cannot justify rejecting all by condemning all work. Based on these facts, County Y's statute purports to "require or authorize the commission of an act [ ] that would constitute an unlawful employment practice" under Title VII.

VIII. Best Practices for Employers

The following are examples of best practices for employers considering criminal history when making hiring decisions.


  • Eliminate policies or practices that prevent people from working because of their criminal records.

  • Educate managers, recruiters, and legislators about Title VII and its prohibition on discrimination in the workplace.

development of a policy

  • Develop rigorous, client-specific written policies and procedures for screening applicants and employees for criminal behavior.

    • Identify the essential requirements of the job and the actual circumstances in which the jobs are performed.

    • Identify the specific infractions that can demonstrate the disqualification to perform said functions.

      • Identify criminal offenses based on all available evidence.

    • Determine the duration of criminal disqualification based on all available evidence.

      • Add a custom rating.

    • Record the reasons for the policies and procedures.

    • Record requests and research considered in developing policies and procedures and maintain records.

  • Educate managers, recruiters, and decision makers on how to implement policies and procedures consistent with Title VII.

Criminal Record Questions

  • When asking criminal history questions, limit the questions to those records whose deletion would be related to the job of the position and in accordance with business necessity.


  • Keep applicant information and employee criminal records confidential. Use it only for its intended purpose.

Approved by the Commission:

Silla Jacqueline A. Berrien



1 42 USC §2000e et seq. The EEOC also enforces other anti-discrimination laws, including: Title I of the Americans with Disabilities Act of 1990, as amended (ADA) and Section 501 of the Rehabilitation Act, as as amended, addressing employment discrimination that prohibits a disability; the Age Discrimination Act of 1967, as amended (ADEA), which prohibits discrimination based on age 40 and over; Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits discrimination based on genetic information; and the Equal Pay Act of 1963, as amended (EPA), which requires employers to pay men and women employed in the same establishment the same wages for the same work.

2 All entities covered by Title VII are subject to this review. See 42 U.S.C. § 2000e-2 (anti-discrimination provisions); 42 USC § 2000e(b)"(e) (definition of "employer," "employment agency," and "labor organization"); 42 USC § 2000e-16(a) (prohibition of discriminatory employment practices by departments and federal agencies). For the purposes of these Guidelines, use the term "employer" instead of listing all entities covered by Title VII. The Commission addresses other coverage issues, particularly those related to fees related to, for example , joint employment or third party interference, in Section 2 of the Compliance Manual: Threshold Issues,US Emp't Equal Opportunity Community, § 2-III B., Covered Entities, http://www.eeoc.gov/policy/docs/threshold.html#2-III-B (accessed April 23, 2012).

3 For the purposes of this guideline, references to “contact” with the criminal justice system may include, for example, arrest, indictment, indictment, citation, conviction, incarceration, probation, or probation.

4 verThomas P. Bonczar, Bureau of Justice Statistics, US Department of Justice, Prevalence of prison sentences in the US population., 1974""2001, at 3 (2003), https://www.bjs.gov/content/pub/pdf/piusp01.pdf [hereinafterprison expansion] ("Between 1974 and 2001, the number of former prisoners living in the United States more than doubled, from 1,603,000 to 4,299,000.");Sean Rosenmerkel et al., Bureau of Justice Statistics, US Department of Justice, Crime Sentences in State Courts, 2006 „“ Statistical Tables 1(2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf (reporting that between 1990 and 2006 the number of offenders convicted in state courts increased by 37%); See alsoBanking Center in the United States one of 31: the long reach of the American corrections 4(2009). . .) [bringing] the total population in custody to 2.3 million. During the same period, the number in community custody increased by a staggering 3,535,660 to a total of 5.1 million.");Banking Center in America One of 100: Behind Bars in America 2008, 3 (2008), http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-1-1_FORWEB.pdf ("[M]ore than one in 100 adults is now incarcerated in a US prison or jail"); Robert Brame, Michael G Turner, Raymond Paternoster, and Shawn D Bushway, Cumulative Prevalence of Imprisonment Ages 8 to 23 in a National Sample, 129pediatrics21, 25, 26 (2012) (noting that approximately 1 in 3 of all young Americans by the age of 23 will experience at least 1 arrest for a non-trafficking offense).

5 verJohn Schmitt and Kris Warner, center. for economy & Political Research, Ex-Offenders and the Labor Market 12(2010). ), or about one in 33 working-age adults. Ex-offenders made up a larger proportion of the total working-age population: 6.6 to 7.4 percent, or about one in 15 working-age adults [not all offenders are serving prison terms]" ; see identification at 3 (concluding that "without reform of the criminal justice system, the proportion of ex-offenders in the working-age population will increase significantly in the coming decades").

6prison expansion, see footnote 4, at 4, Table 3.

7 id.

8 One of 31, see footnote 8 of 5 (noting that when all parolees, parolees, prisoners, or inmates are added together, the total exceeds 7.3 million adults; that's more than the population of Chicago, Philadelphia, San Diego and Dallas combined and more than the populations of 38 states and the District of Columbia).

9prison expansion, footnote 4, at 7.

10 Id. at 5, Table 5; see.Banking Center in the States, Incidental Costs: Impact of Incarceration on Economic Mobility 6(2010), http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653 (“Simply put, incarceration in the United States centers on African-American men. While 1 in 87 white men among ages 18 and 64 incarcerated and the number of Hispanic men of the same age is 1 in 36, Black men 1 in 12"). a demographic is incarcerated compared to 1 in 14 Hispanic men and 1 out of every 3 black men.Banking center our states, supra, at 8, Fig. 2.

11 This document uses the terms “black” and “African American” and the terms “Hispanic” and “Latino” interchangeably.

12 See footnotes 65-67 (for data on arrest rates and vital statistics for African Americans and Hispanics).

13prison expansion, footnote 4, at 1.

14 id. ab 8

15 See Statement of Policy Regarding the Issuance of Criminal Records Under Title VII of the Civil Rights Act of 1964,US Emp't Equal Opportunity Community(February 4, 1987) https://www.eeoc.gov/laws/guidance/what-you-should-know-eeoc-and-arrest-and-conviction-records; EEOC Policy Statement on the Use of Statistics in Enforcement Actions Related to the Disqualification from Employment of Persons with Criminal Records,US Emp't Equal Opportunity Community(July 29, 1987) https://www.eeoc.gov/laws/guidance/what-you-should-know-eeoc-and-arrest-and-conviction-records; Policy Guidance on Consideration of Arrest Records in Title VII Employment Decisions,US Emp't Equal Opportunity Community(Sept. 7, 1990) https://www.eeoc.gov/laws/guidance/enforcement-guidance-consideration-arrest-and-conviction-records-employment-decisions; Section 15 of the Compliance Manual: Discrimination based on Race and Color,US Emp't Equal Opportunity Community, § 15-VI.B.2 (April 19, 2006), http://www.eeoc.gov/policy/docs/race-color.pdf. See also EEOC Decision No. 72-1497 (1972) (challenging a policy of expungement on the basis of "serious offenses"); EEOC Decision No. 74-89 (1974) (challenging a policy in which a criminal conviction was considered an adverse factor leading to disqualification); EEOC Decision No. 78-03 (1977) (challenging a policy of removal based on convictions for a felony or misdemeanor related to moral turpitude or drug use); EEOC Decision No. 78-35 (1978) (concluding that officer's removal was reasonable given his pattern of criminal conduct and the severity and timing of his criminal conduct).

16 In 2011, US Attorney General Eric Holder established an interagency Cabinet-level Reentry Board to support federal government efforts to promote the successful reintegration of ex-offenders into their communities. National Reentry Resource Center "" Federal Interagency Reentry Council, https://nationalreentryresourcecenter.org/projects/firc (accessed April 23, 2012). As part of the Council's efforts, it has focused on removing barriers to the employment of ex-offenders to reduce recidivism by issuing various fact sheets on hiring people with criminal records. see for examplelined Interagency Reentry Board, Reentry Myth Buster! about federal hiring policies(2011), https://ncsecondchance.org/wp-content/uploads/2017/12/Federal-Gov_t-hiring-practices.pdf;lined Interagency Reentry Board, Reentry Myth Buster! Recruitment Guidance/Criminal Records(2011), https://www.reentryessentials.org/uploads/1/2/7/2/127293103/federal_interagency_reentry_council_reentry_mythbusters.pdf;lined Interagency Reentry Board, Reentry Myth Buster! criminal records and professional background checks(2011), http://www.nationalreentryresourcecenter.org/documents/0000/1176/Reentry_Council_Mythbuster_FCRA_Employment.pdf;lined Interagency Reentry Board, Reentry Myth Buster! in the federal bond program(2011), https://www.hud.gov/sites/documents/REENTRY_MYTHBUSTERS.PDF.

In addition to these federal efforts, various state law enforcement agencies have adopted initiatives and programs that encourage the employment of ex-offenders. For example, the Texas Department of Justice has a Division of Reentry and Integration, and within that division, a working group of the Reentry Task Force. See Reentry Task Force and Division of Reentry and Integration,Texas Department of Criminal Justice, http://www.tdcj.state.tx.us/divisions/rid/rid_texas_reentry_task_force.html (accessed April 23, 2012). One of the working groups of this task force focuses specifically on identifying employment opportunities for ex-offenders and the barriers that prevent ex-offenders from accessing jobs or vocational training programs. Department of Reentry and Integration "Working Groups of the Reentry Task Force",Texas Department of Criminal Justice, https://www.tdcj.texas.gov/divisions/rid/index.html (accessed April 23, 2012). In addition, the Ohio Department of Rehabilitation and Correction has an Office of Offender Workforce Development that “works with department personnel and Ohio Department of Rehabilitation and Correction facilities to prepare offenders for the process of job search and employment. Offender Jobs in Ohio,Ohio Department of Rehabilitation. and Corr. Offender Workforce Dev, https://www.drc.ohio.gov/owd (last updated August 9, 2010). Law enforcement agencies in other states such as Indiana and Florida have also recognized the importance of promoting the employment of ex-offenders. See, for example, IDoc: Road to Reentry,Ind. Dept. Corr., https://www.in.gov/idoc/re-entry/ (last accessed April 23, 2012) (description of various services and programs available to ex-offenders to help them find employment);Florida Department of Corr., Recidivism Strategic Plan: Fiscal Year 2009-2014, at 11, 12 (2009), http://www.dc.state.fl.us/orginfo/FinalRecidivismReductionPlan.pdf (identifying lack of employment as one of the barriers to successful rehabilitation of ex-offenders).

17Carl R. Ernst & Les Rosen, "National" Criminal History Databases 1(2002), http://www.brbpub.com/articles/CriminalHistoryDB.pdf.

18LexisNexis, Criminal Record Check: What Nonprofits Need to Know About Criminal Records 4(2009), http://www.lexisnexis.com/risk/nonprofit/documents/Volunteer_Screening_White_Paper.pdf.

19 id.

20Ernst and Rosen, footnote 17 above, at 1;Ass'n National Prof'l Background Screeners, criminal background checks for employment purposes 5, http://www.napbs.com/files/public/Learn_More/White_Papers/CriminalBackgroundChecks.pdf.

21LexisNexis, footnote 18, page 6. See also National Ass'n of Prof'l Background Screeners, footnote 20, page 5.

22Ernst and Rosen, footnote 17 above, at 1.

23 id.

24 verSEARCH, Amerikas National Criminal History Task Force3, 4 (2005), http://www.search.org/files/pdf/ReportofNTFCBA.pdf. Registries and watch lists may also include federal and international terrorist watch lists and records of persons under investigation for certain types of crimes, such as: B. Gang-related crimes. Identity. See alsoLexisNexis, supra note 18, p. 5 (reporting that “all 50 states currently have a publicly available sex offender registry”).

25 verUS Department of Justice, Report of the Attorney General on Criminal Background Checks4 (2006), https://www.bjs.gov/content/pub/pdf/ag_bgchecks_report.pdf [hereinafterbottom scan🇧🇷 See alsoErnst and Rosen, footnote 17, at 2.

26 verAss'n Nacional de Prof'l Background Screeners, footnote 20 above, at 5. See alsoLexisNexis, footnote 18 above, at 5.

27LexisNexis, footnote 18 above, at 5. See alsoI am. Cols ass. of Pharmacy, Report of the AACP Criminal History Review Advisory Panel6"7 (2006), http://www.aacp.org/resources/academicpolicies/admissionsguidelines/Documents/AACPBackgroundChkRpt.pdf.

28I am. Cols ass. the pharmacy, footnote 27, at 6""7.

29bottom scan, footnote 25 above, at 4.

30 id.

31Ass'n Nacional de Prof'l Background Screeners, footnote 20 above, at 5.

32bottom scan, footnote 25 above, at 4.

33 id. ab 3.

34 See ibid. ("Non-criminal evaluation using FBI criminal records is generally conducted by a government agency using suitability criteria established by law or the appropriate agency.")

35 id. ab 5.

36 id. ab 4.

37Dennis A. DeBacco & Owen M. Greenspan, Bureau of Justice Statistics, US-Justizministerium, Survey of State Criminal Record Information Systems, 2010, at 2 (2011), https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf [hereinafterState crime history].

38 verbottom scan, supra note 25, at 17.

39SEARCH, Bericht der National Task Force on the Commercial Sale of Criminal Justice Record Information 83(2005), www.search.org/files/pdf/RNTFSCJRI.pdf; see also Douglas Belkin, More Job Seekers Scramble to Erase Their Criminal Past, Wall St. J., November 11, 2009, at A1, available at http://online.wsj.com/article/SB125789494126242343.html?KEYWORDS= Douglas +Belkin ("Prisons that have been legally purged may remain in the databases that data collection companies provide to potential employers; these administrative companies are not legally required to remove them").

If applicants dispute the existence of expunged or sealed records, as is allowed in many states, they can appear dishonest if such records are reported during a criminal background check. See Debbie A. Mukamal and Paul N. Samuels, Statutory Limitations on the Civil Rights of Persons with Criminal Records, 30Fordham Housing Estate🇧🇷 L. J. 1501, 1509""10 (2003) (noting that 29 of the 40 states that allow the expungement/sealing of arrest records allow the individual to deny their existence when prompted on an employment or similar form and 13 of the 16 states that allow expunging/sealing of adult conviction records allows the subject of the record to deny its existence in similar circumstances).

40 verSEARCH, Interstate Identification Verifying Name Check Effectiveness: Report of the National Task Force to the US Attorney General 21""22(1999), www.search.org/files/pdf/III_Name_Check.pdf ("The so-called 'name check' is based not only on a person's name, but also on other personal characteristics such as gender, race, date of birth, birth, and social security number...[N]Name checks have been known to produce inaccurate results as a result of identical or similar names and other job applicants, 4,562 of these individuals were "name checked" and reported incorrectly that they had a criminal record, which represents approximately 5.5% of the total sample).

41bottom scan, footnote 25 above, at 2.

42 The FCRA defines a “consumer reporting agency” as “any person who regularly engages, in whole or in part, in the practice of collecting or evaluating consumer credit report information or other information about consumers for the purpose of inform the consumer, in exchange for remuneration. , dues, or on a non-profit cooperative basis Third Party. . . ." 15 USC §1681a(f) (emphasis added); See alsobottom scan, supra note 25, p. 43 (stating that records collected by rating agencies include “criminal history information, such as arrest and conviction information”).

(Video) Healthcare and the Unions

43 The FCRA defines a “consumer report” as “any written, oral, or other communication of information by a consumer reporting agency regarding the creditworthiness, creditworthiness, character, general reputation, characteristics personal data or lifestyle of a consumer that is used in whole or in part for the purpose, or is expected to be used or collected, to serve as a factor in determining the consumer's suitability for...employment purposes.. .". 15 USC § 1681a(d)(1) (emphasis added).

44 See 15 U.S.C. Section 1681c(a)(2) ("No consumer reporting agency shall produce consumer reports that contain ... restrictions that have expired, whichever is longer"). But see the ID. §1681c(b)(3) (stating that criminal history reporting restrictions do not apply to individuals who "will earn an annual salary of at least $75,000 or more").

45 15 USC § 1681c(a)(5) ("No consumer reporting agency shall prepare a consumer report that contains... [a] other adverse information, except records of felony convictions that predate the report by more than seven years. " ).

46bottom scan, footnote 25 above, at 2.

47 See Adam Klein, Written Testimony of Adam Klein,US Emp't Equal Opportunity Community, http://www.eeoc.gov/eeoc/meetings/7-26-11/klein.cfm (last visited April 23, 2012) (describes how “various data collection agencies also market and sell a publication Retail Theft Database Used by Potential Employers to Screen Candidates"). See also Retail Theft Database, ESTEEM, Contributory Workplace Theft Database,LexisNexis, http://www.lexisnexis.com/risk/solutions/retail-theft-contributory-database.aspx (last visited April 23, 2012) (stating that their database "[t]records burglaries and thefts in more than 75,000 offices across the country"). These databases may contain inaccurate and/or misleading information about applicants and/or employees. See generally Goode v. LexisNexis Risk & Info. Analytics Grp., Inc., No. 2:11- CV-2950-JD, 2012 WL 975043 (E.D. Pa. 22 Mar 2012) (unpublished).

48bottom scan, footnote 25 above, at 2.

49Society for Human Res. Management Background Check: Perform criminal background checks, Slide 3 (January 22, 2010), http://www.slideshare.net/shrm/background-check-criminal?from=share_email [hereinafterConducting criminal investigations] (73% of employers surveyed said they checked criminal records on all applicants, 19% said they checked criminal records on certain job applicants, and only 7% said they did not check criminal records on any of their candidate applicants of employment). The survey excluded “not sure” responses from its analysis, which could represent a 1% difference in the total number of responses from employers. Identity.

50Conducting criminal investigations, footnote 49, at slide 7 (39% of surveyed employers indicated that they have conducted criminal background checks “to reduce/prevent theft and embezzlement and other criminal activity”); see also Sarah E. Needleman, Businesses Say Theft by Their Workers is Up, Wall St. J., December 11, 2008, in B8, available at http://online.wsj.com/article/SB122896381748896999.html.

51Conducting criminal investigations, footnote 49, on slide 7 (61% of surveyed employers indicated that they conducted criminal background checks “to ensure a safe work environment for workers”); See alsoErika Harrell, Bureau of Justice Statistics, US Department of Justice, Workplace Violence, 1993""2009, at 1 (2011), https://www.bjs.gov/index.cfm?ty=pbdetail&iid=2377 (reporting that in 2009 “[n]e]deadly violence at work accounted for around 15% of all non-fatal violence. crimes against those 16 and older"). But see id. (noting that from "2002 to 2009 the rate of non-fatal violence in the workplace decreased by 35% after the rate had decreased by 62% from 1993 to 2002") Studies show that the majority of violence in the workplace is perpetrated by people outside the company or its employees. and 41% for women), while the violence between peers represented a much lower percentage (16.3% for men and 14.3% for women)); see alsoNational Institute of Safety at Work, Ctr. for disease control and prevention, strategies to prevent violence in the workplace, and research needs 4, Table 1 (2006), http://www.cdc.gov/niosh/docs/2006-144/pdfs/2006-144.pdf (reporting that approximately 85% of workplace homicides studied were to further a crime committed by individuals outside the company or its employees, approximately 7% were committed by employees or former employees, 5% were committed by individuals who had a personal relationship with an employee, and 3% were committed by individuals who had a compromised customer-customer relationship with the business).

52Conducting criminal investigations, footnote 49, on slide 7 (55% of surveyed employers indicated they conducted criminal background checks “to reduce liability for negligent hiring”). Employers have a general legal obligation to exercise reasonable care in hiring to avoid foreseeable risks of harm to employees, customers, and the public. If an employee engages in harmful misconduct on the job and the employer failed to exercise such care in selecting the employee, the employer may be subject to negligent hiring liability. See, for example, Stires v. Carnival Corp., 243 F. Suppl. 2d 1313, 1318 (M.D. Fla. 2002) ("[n]either negligent hiring exists if...the employer knew or should have known of the employee's disability, and the issue of liability relates primarily to the adequacy of the pre -Labor Law Investigate the employee's background").

53Conducting criminal investigations, footnote 49, on slide 4 (40% of employers surveyed reported that they conduct criminal background checks for "applicants for positions for which state law requires background checks (for example, educators, licensed physicians, etc.)"; see id. on slide 7 (20% of employers reported conducting criminal background checks “[to] comply with applicable state laws requiring background checks (for example, daycare teachers, physicians licensed, etc.) for a particular position.”) The study did not specify the exact percentage of employers that conducted criminal background checks to comply with applicable federal laws or regulations, but did report that 25% of employers did conduct background checks background checks for "position applicants for positions related to national defense or national security." slide 4.

54 Ver 42 USC. § 2000e-2(a).

55 Discrimination based on race or national origin has been documented among job applicants with the same qualifications and criminal records. For example, a 2003 study showed that white applicants with the same qualifications and criminal records as black applicants were three times as likely to be interviewed as black applicants. See Devah Pager, The Mark of a Criminal Record, 108Centavo. J. Soc.🇧🇷 937, 958, figure 6 (2003), https://www.ncjrs.gov/pdffiles1/nij/grants/198320.pdf. Pager paired two young black and white men as "testers" for her study. The "testers" in Pager's study were college students who applied to 350 low-skill jobs advertised in Milwaukee-area classified ads to assess the impact of criminal records on subsequent employment opportunities. The same study showed that white job applicants with a criminal record were more likely to be called for interviews than similarly qualified black applicants without a criminal record. Identity. at 958. See also Devah Pager et al., Sequencing Disadvantage: The Effects of Race and Criminal Background for Low Wage Job Seekers, 623Anais Am. academic politics & society Sciences., 199 (2009), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3583356/ (noting that among black and white raters with similar backgrounds and criminal histories, “the negative effect of a conviction of a criminal Criminal records are significantly higher for blacks than for whites...the amount of criminal record penalty suffered by black applicants (60 percent) is about twice the penalty for white criminal record applicants (30 percent)"); see id. .in 200""201 (finding that personal contact plays an important role in conveying the impact of criminal stigma on the hiring process and that black candidates are less likely to be interviewed and therefore have less opportunity to defuse stigma by building a relationship with the hired employee); Devah Pager, Statement by Devah Pager, Professor of Sociology at Princeton University,US Emp't Equal Opportunity Community, http://www.eeoc.gov/eeoc/meetings/11-20-08/pager.cfm (accessed April 23, 2012) (discussing the results of the Sequence Disadvantage Study);Devah Pager and Bruce Western, New York Commission on Human Rights, Race at Work, Racial Realities, and Criminal Records in the New York Job Market 6, Figure 2 (2006), https://scholar.harvard.edu/pager/publications/race-work-realities-race-and-criminal-record-new-york-city-job-market (finding that white evaluators with a criminal conviction recalled 13% of the time, Hispanic screeners with no criminal records were removed 14% of the time, and Black screeners with no criminal records were removed 10% of the time).

56 Race and Color Discrimination, footnote 15, § V.A.1.

57 A 2006 study showed that employers who are reluctant to hire people with criminal records sometimes assume, in the absence of evidence to the contrary, that African-American male applicants have disqualifying criminal records. Harry J. Holzer et al., Perceived Criminality, Background Checks, and Racial Employer Hiring Practices, 49JL & Economics.451 (2006), http://www.jstor.org/stable/pdfplus/10.1086/501089.pdf; See alsoHarry Holzer et al., Urban Inst., Employer Lawsuit by Ex-Fenders: Recent Evidence from Los Angeles 6""7(2003), https://www.urban.org/research/publication/employer-demand-ex-offenders (describes the results of an employer survey in which more than 40% of employers indicated "probably not" or “absolutely not Caer.” “be willing to hire a candidate with a criminal record).

58 The Commission did not conduct peer tests to investigate allegedly discriminatory employment practices. However, it has issued a compliance policy that discusses situations where individuals or organizations object, based on, among other things, peer-agreed evidence. See General Application Guidance: Whether "Provers" Can Bring Charges and Bring Employment Discrimination Claims,US Emp't Equal Opportunity Community(May 22, 1996), http://www.eeoc.gov/policy/docs/testers.html.

59 42 USC § 2000e-2(k)(1)(A)(i). If an employer successfully demonstrates that its policy or practice for the job in question is job-related and consistent with business necessity, a Title VII claimant can still prevail by showing that a less discriminatory "alternative employment practice" exists. that meets the employer's requirements. legitimate objectives with the same effectiveness as the challenged practice, objected to by the employer. Identity. § 2000e-2(k)(1)(A)(ii).

60 401 US 424, 431""32 (1971).

61 i.d. in the year 431.

62 The Civil Rights Act of 1991, pub. L no 102-166, § 105; see also Lewis v. City of Chicago, 130 S.Ct. 2191 (2010) (confirmation of the different impact analysis); Rick v. DeStefano, 557 US 557 (2009) (same).

63 42 USC § 2000e-2(k)(1)(A)(i).

64 The Commission understands that employers use information requested and received from their applicants and others when making a hiring decision. See Gregory v. Litton Sys. Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970). If an employer claims that it failed to include the candidate's or worker's known criminal history in a hiring decision, the EEOC will seek evidence to support that claim. For example, evidence that the employer has other employees in the same protected group with roughly comparable criminal histories may support a finding that the employer did not use the applicant's or employee's criminal history to disqualify them from employment.

Sixty-fiveUnit. Crime Reporting Program, Fed. Bureau of Investigation, Crime in the United States 2010, na Tabela 43a (2011), https://ucr.fbi.gov/crime-in-the-u.s/2010/crime-in-the-u.s.-2010/tables/table-43/10tbl43a.xls.

66US Census Bureau, The Black Population: 2010, at 3 (2011), https://www.census.gov/library/publications/2011/dec/c2010br-06.html (reporting that in 2010 “14% of all people in the United States identified as as blacks, alone or in combination with one or more races").

67 Precise data on the number of Hispanics arrested and convicted in the United States is limited. To seeNancy E. Walker et al., Conselho Nacional de La Raza, Lost Opportunities: The Reality of Latinos in the U.S. Criminal Justice System17""18 (2004), http://publications.unidosus.org/bitstream/handle/123456789/1213/file_Lost_Opportunities_PDF.pdf (explains why "[i]t is very hard to find information", much less accurate information" " on the number of Latinos incarcerated in the United States"). The Sourcebook of Criminal Justice Statistics from the Department of Justice's Bureau of Justice Statistics and the FBI's Division of Criminal Information Services does not provide data on arrests by ethnicity. Identity. at 17. However, the US Drug Enforcement Administration (DEA) breaks down the data by Hispanic and non-Hispanic ethnicity.Identity.at 18. According to the DOJ/BJS, from October 1, 2008 to 30 As of September 2009, 45.5% of DEA drug arrests were Hispanic or Latino.Mark Motivans, Bureau of Justice Statistics, US Department of Justice, Federal Justice Statistics, 2009 „“ Statistical Tables, at 6, Box 1.4 (2011), https://www.bjs.gov/content/pub/pdf/fjs09.pdf. As a result, Hispanics were three times more likely to be arrested for drug offenses by the DEA than the general population. To seeUS Census Bureau, Overview of Race and Hispanic Ancestry: 2010, at 3 (2011), https://www.census.gov/content/dam/Census/library/publications/2011/dec/c2010br-02.pdf (reporting that in 2010 “50.5 million Hispanics in the United States, constituting 16 percent of the total population"). However, national statistics indicate that Hispanics have similar or lower rates of drug use compared to whites. See, for exampleDrogenmissbrauch und psychiatrische Dienste. Admin., Departamento de Salud y Servicios Humanos de EE. UU., Results of the 2010 National Survey on Drug Use and Health: Summary of National Findings 21, Figure 2.10 (2011), https://www.samhsa.gov/data/sites/default/files/NSDUHNationalFindingsResults2010-web/2k10ResultsRev/NSDUHresultsRev2010.pdf (reporting, for example, that the usage rate for Hispanics in 2009 was 7 0.9% versus 8.8% for whites).

68 See for exampleHuman Rights Watch, Decades of Disparity: Drug Arrests and Race in the United States 1(2009). 🇧🇷 🇧🇷 🇧🇷 Whites and blacks commit crimes related to drugs -possession and sale- at more or less comparable rates");Drogenmissbrauch und psychiatrische Dienste. Admin., Departamento de Salud y Servicios Humanos de EE. UU., Results of the 2010 National Survey on Drug Use and Health: Summary of National Findings 21(2011), https://www.samhsa.gov/data/sites/default/files/2011MHFDT/2k11MHFR/Web/NSDUHmhfr2011.htm (reports that in 2010 rates of illicit drug use in the United States among older adults 12 and older was 10.7% for African Americans, 9.1% for Whites, and 8.1% for Hispanics);Harry Levine and Deborah Small, N.Y. Civil Liberties Union, Marijuana Arrest Crusade: Racial Bias and Police Politics in New York City, 1997""2007, at 13""16 (2008), https://www.ssc.wisc.edu/~wright/125-2010/Flier-for-Marijuana-Arrest-Crusade-Dec-08.pdf ( Citing US government research showing that whites use marijuana more often than African-Americans and Hispanics, yet the marijuana arrest rate for Hispanics is nearly three times that of whites, and the marijuana arrest rate for African-Americans is five times higher than the arrest rate for white clothing).

69prison expansion, footnote 4, pp. 1, 8. Due to the nature of the data available, the Commission uses incarceration data as a proxy for conviction data.

70 id.

71 id.

72Marc Mauer & Ryan S. King, The Sentencing Project, Unequal Justice: State Incarceration Rates by Race and Ethnicity10 (2007), www.sentencingproject.org/Admin%5CDocuments%5Cpublications%5Crd_stateratesofincbyraceandethnicity.pdf.

73 id.

74Paul Guerino et al., Bureau of Justice Statistics, US Department of Justice, incarcerated 2010, at 27, Table 14 (2011), https://www.bjs.gov/content/pub/pdf/p10.pdf (reporting that as of December 31, 2010 black men were arrested at a rate of 3,074 per 100,000 black male residents, Hispanic males were arrested at a rate of 1,258 per 100,000 Hispanic male residents, and white males were arrested at a rate of 459 per 100,000 white male residents); see.one of 31, see footnote 4 of 5 (“Black adults are four times more likely than whites and nearly 2.5 times more likely than Hispanics to be in prison control. One in 11 black adults, 9, 2 percent, was under prison control [parole, parole, arrest or detention] at the end of 2007").

75 Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. Part 1607 states that "[employers] shall retain and make available information about [the] adverse effects of [their job selection processes]" 29 CFR §1607.15A. “If [an employer] has not maintained [such records], the EEOC may conclude that [the employer's] failure to maintain such data has had an adverse effect on the selection process. . . ." identity. §1607.4D.

76 See, for example, He v. SEPTA, 418 F. Suppl. 2d 659, 668""69 (E.D. Pa. 2005) (finding that plaintiff supported evidence from defendant's personal records and national data sources from the U.S. Bureau of Justice Statistics and Statistical Summary US), Other Confirmed Reasons, 479 F.3d 232 (3. Cir. 2007); v Green Monday Pac. R.R., 523 F.2d 1290, 1294""95 (Cir. 8, 1975) (finding that policy of expunging defendant from criminal records had variable racial implications when evaluating local census statistics and plaintiff data), appeal after custody, 549 F .2d 1158, 1160 (8th Cir. 1977).

77 457 US 440, 442 (1982).

78 id. a 453""54

79 433 US 321, 330 (1977).

80 See, for example, Int'l Bhd. for Teamsters v. USA, 431 USA 324, 365 (1977) (noting that "[a] consistently applied discriminatory policy may indeed discourage job applications from those who are aware of and unwilling to submit to the humiliation of explicit and certain rejection") .

81 42 USC § 2000e-2(k)(1)(A)(i). See Griggs v. Duke Power Co., 401 US 424 (1971). See also 42 U.S.C. § 2000e(m) (definition of “sample” meaning “meets the burden of production and persuasion”).

82 422 US 405 (1975).

83433 US 321 (1977).

84 137 Kong. Recording. 15273 (1991) (Statement of Senator Danforth) (“[The] terms “business necessity” and “job related” are intended to reflect the views pronounced by the Supreme Court in Griggs v. Duke Power Co and in the other decisions of the Supreme Court before Wards Cove Packing Co. v. Atonio.” (citations omitted)). Section 105(b) of the Civil Rights Act of 1991 provides that only the interpretive memorandum read by Senator Danforth into the Congressional Minutes may be considered legislative history or used to interpret or apply the business necessity standard.

85 401 EE. UU. en 431, 436.

86 422 USA at 430""31 (supports EEOC position that discriminatory testing is prohibited unless demonstrated by professionally acceptable methods to predict or correlate with "" significant elements of work behavior that are inherent to the job or the works include or are relevant to the applicant(s)" (reciting 29 C.F.R. § 1607.4(c))).

🇧🇷 Effort required to perform the job safely and efficiently).

88 id. a 331 n.14.

89 523 F.2d 1290, 1293 (8 Cir. 1975). "In response to a question on an application form, Green [a 29-year-old African-American man] announced that he had been convicted in December 1967 for refusing military training. He indicated that he served 21 months in prison until his sentence, released parole on July 24, 1970." Identity. at 1292""93.

90 green vs. Monday Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977) (Upholding a district court order prohibiting an employer from using an applicant's criminal record as an absolute disqualification from employment, but allowing employer to consider the record penalties as a factor in enforcing individual hiring decisions, provided the respondent takes all three factors into account).

91 i.d. (refers to completion of sentence rather than completion of probation).


93479 F.3d 232 (3. Cir. 2007).

94Identity. em 235.

95Identity. em 235, 236.

96 i.d. in the year 235

97 id. I have 244

98 id. a 244""45.

99 ids em 247. Vgl. Shawn Bushway et al., The Predictive Value of Criminal Record Checks: Do Age and Criminal History Affect Time to Redemption?, 49criminology27, 52 (2011) [hereinafter The Predictive Value of Criminal Record Checks] ("In light of the results of current and prior [relapse] studies, the 40-year period presented in El v. SEPTA (2007) looks too old needs another sale").

100 El, 479 F.3d em 248.

101 Some states have enacted laws to restrict employer investigations of all or some arrest records. To seebottom scan, footnote 25, at 48""49. At least 13 states have laws that specifically prohibit the inspection and/or disclosure of arrest records, subject to certain exceptions.see for example, Alaska (alaska state.§ 12.62.160(b)(8)); Arkansas (Arca. Code-Ann🇧🇷 § 12-12-1009(c)); California (Kalk. Worked. Code§ 432.7(a)); Conneticut (General connection statistics. §§ 46a-80(e)); Illinois (775Sick. compensation condition🇧🇷 § 5/2-103(A)) (handling of arrest records ordered to be expunged, sealed, or seized); Massachusetts (Leis Gen. el MassachusettsCH. 151B § 4(9)); Míchigan (my compensation quiet§ 37.2205a(1) (applicable to misdemeanor arrests only)); Nebraska (Neb. Rev. Statistics🇧🇷 Section 29-3523(2)) (Ordering non-disclosure of arrest records under certain conditions and periods)); NY (New York Executive Law§ 296(16)); North Dakota (NORTH DAKOTA Hundred. code§ 12-60-16.6(2)); Pennsylvania (18 pa. cons. Condition. § 9121(b)(2)); Rhode Island (Con Gerais do RI§ 28-5-7(7)) y Wisconsin (Wis. Stats.. §§ 111.321, 111.335a).

102 See United States v. Armstrong, 517 USA 456, 464 (1996) (discussing the broad discretion of federal prosecutors in deciding whether to prosecute cases and whether indictments should be brought before a grand jury); Bordenkircher v. Hayes, 434 USA 357, 364 (1978) (explains the same to prosecutors); See alsoThomas H. Cohen and Tracey Kyckelhahn, Bureau of Justice Statistics, US Department of Justice, Criminal Defendants in Large Urban Counties, 2006, at 10, Table 11 (2010), https://www.bjs.gov/content/pub/pdf/fdluc06.pdf (reporting that in the nation's 75 largest counties, nearly one-third of criminal arrests occur without resulting in a conviction because the charges against the defendants were dismissed).

103 Black v. Bd. of Bar Exam'rs, 353 U.S. 232, 241 (1957) ("The mere fact that a [person] has been arrested has very little, if any, evidentiary value to show that she committed any crime"); US. v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006) (Affirming a preliminary jury order that "the defendant shall be presumed not guilty unless proven guilty. The charge against the defendant is only an indictment, no more. It is no evidence of guilt or otherwise."); see Gregor v. Litton Sys. Inc., 316 F. Supp. 401, 403 (C.D. Cal. 1970) ("[I]Information on the arrest records of a prospective employee without a conviction is irrelevant to the suitability or qualification for employment of the applicant'), modified for other reasons, 472 F.2d 631 (9th Circ. 1972), Dozier v. Tschupka, 395 F. Supp. 836, 850 n.10 (S.D. Ohio 1975) (stating that the use of arrest records was a very poor predictor of propensity to steal an employee when there were no procedural safeguards to avoid resorting to unjust arrest leave); Cairo City v. re Employee Exercising Com., 8 Mid. Exercising Dec. (CCH) & 9682 (Ill. Dept. Conn. 1974) (finding no candidates who wanted to be police officers could not be prevented from being appointed simply because they had been arrested and not convicted); see also EEOC Dec. 7483, ¶ 6424 (CCH) (1983) (no business justification found for unconditional dismissal of all employees with a history of arrest by an employer logger (all five employees fired were black), supposedly to reduce workplace theft; the employer has provided no evidence that those particular employees were involved in any of the robberies or that any person arrested but not convicted may commit crimes in the future); EEOC Dec. 7687, ¶ 6665 (CCH) (1983) (Noting that an applicant with the intent to become a police officer cannot be rejected on the basis of a prior five-year arrest for driving a stolen automobile is when he claimed he doesn't know he stole the car and the charges were dropped).

104 verState crime history, supra note 37, at 2; See alsobottom scan, supra note 25, at 17.

105 See footnotes 39 and 40 above.

106 See Clark v. Arizona, 548 USA 735, 766 (2006) (“The first presumption [in a criminal proceeding] is that the defendant is innocent unless the government proves beyond a reasonable doubt all the elements of the alleged crime…”). See also Fed. R. Crim P 11 (Code of Criminal Procedure for Confession). The Supreme Court concluded that, under the Sixth Amendment, defendants are entitled to the effective assistance of counsel during trial. See generally Lafler v. Cooper, 132 S.Ct. 1376 (2012); Missouri v. Frye, 132 S.Ct. 1399 (2012).

107 See text in footnote 39 above.

108 See for exampleHa ha. Rev Status🇧🇷 § 378-2.5(b). Under this provision, an employer can withdraw the job offer if the prospective employee has a criminal record "reasonably related to the duties and responsibilities of the job." Identity. See alsoGeneral connection statistics🇧🇷 § 46a-80(b) ("No employer...shall inquire into a prospective employee's prior convictions until such prospective employee has been determined to be qualified for the position");of. condition🇧🇷 Section 364.021(a) ("[A] public employer shall not investigate or review an applicant for public employment's criminal record or criminal record until after the employer has selected the applicant for an interview"). State fair labor practice agencies have information on applicable state law.

109 See generalNat'l League of Cities and Nat'l Emp't Law Project, Cities Lead: Promising Reentry Policies Encouraging Local Criminal Record Hiring(2010), https://s27147.pcdn.co/wp-content/uploads/2015/03/CitiesPavetheWay.pdf (Identifying local initiatives that address ways to improve employment opportunities for people with criminal records, including deferral of a Background Check on the final stages of the procurement process, use of development funds and expansion of incentive programs for bids to promote local procurement priorities);Nat'l Emp't Bill, city and county hiring initiatives(2010). to conduct a background check and to inquire about the applicant's criminal history).

110 Several federal statutes automatically prohibit the employment of individuals with certain felony or, in some cases, misdemeanor convictions. See, for example, 5 U.S.C. Section 7371(b) (requiring the mandatory removal of a federal officer convicted of a felony); 46 USC § 70105(c)(1)(A) (requires that persons convicted of espionage, hate speech, treason, or terrorism be permanently barred from obtaining a biometric ship security card and therefore be prohibit working in ports); 42 USC §13726(b)(1) (prohibition of individuals with felony or domestic violence convictions from working for a private prisoner transportation company); 25 USC § 3207(b) (Prohibition of persons with a conviction of one felony or one of two or more felonies from working with Indian children if their convictions include crimes of violence, sexual assault, sexual abuse, exploitation, contact, or prostitution , serious crimes against persons or crimes against children); 18 USC § 922(g)(1),(9) (prohibiting a person convicted of a felony or misdemeanor of domestic violence from possessing a firearm, thereby prohibiting a variety of jobs that require such possession ); 18 USC § 2381 (bar on persons convicted of treason "from holding office in the United States"). Other federal laws prohibit the employment of people of certain beliefs for a specific period of time. See, for example, 5 U.S.C. Section 7313(a) (prohibition on persons convicted of felony incitement to riot or civil disturbance from holding federal government office for five years from date of conviction); 12 USC §1829 (requires a 10-year ban on employing people in banks if they hold certain financial-related beliefs); 49 USC § 44936(b)(1)(B) (imposing a 10-year ban on hiring a person as a security inspector for an airline if that person has been convicted of certain felonies).

111 See 29 C.F.R. § 1607.5 (outline of general rules for validity studies).

112 id.

113 i.d. §1607.6B. The following subsections specify:

(Video) What are the do’s and don’ts during a termination conversation?

(1) When informal or unscored procedures are used. If an informal or non-scoring selection process is used that produces adverse effects, the user should remove the adverse effects or change the process to a formal, scored, or quantified measure, or a combination of measures, and then validate the process accordingly. comply with these guidelines or otherwise justify the continuation of federal proceedings.

(2) When formal ad hoc procedures are used. In general, when using a formal, scored selection process that produces adverse effects, the validation techniques provided in these guidelines should be followed where technically feasible. If the user cannot or is not required to follow the validation techniques provided in these guidelines, the user must modify the procedure to eliminate adverse effects or justify continued use of the procedure in accordance with federal law.

Identity. § 1607.6A, B(1)"(2).

114 Veja, por ejemplo, Brent W. Roberts et al., Predicting the Contraproductive Employee in a Child-to-Adult Prospective Study, 92 J.Applied Psychology🇧🇷 1427, 1430 (2007), https://www.researchgate.net/publication/5995682_Predicting_the_Counterproductive_Employee_in_a_Child-to-Adult_Prospective_Study (noting that in a study of New Zealand residents from birth to age 26 “[a] convictions criminal offenses were not related to self-defeating activities at work [such as tardiness, absenteeism, disciplinary problems, etc.] or theft of things at work").

115 versionOhio Rev. Fr. Code Ann. § 2913.02.

116 523 F.2d at 1298 (stating that "[we] cannot think of any business necessity that would automatically place any person convicted of a crime other than a misdemeanor traffic offense in the permanent ranks of the unemployed").

117 479 F.3d em 247.

118 See, for example, Keith Soothill and Brian Francis, When Do Ex-Offenders Become Non-Offenders?, 48Howard J. de Crim. Nur., 373, 380""81 (2009) (A 2009 study examining sentencing data from the UK and Wales found that the risk of recidivism decreased for groups with prior records, eventually converging at 10 to 15 years with those's risk of convictions approximated the non-objectionable comparison groups); Alfred Blumstein and Kiminori Nakamura, Cashing the General Criminal Police Checks, 47criminology327 (2009) (concluding that there may be a “redemption point” (i.e., a point in time at which a person's risk of recidivism or imprisonment is comparable to that of persons without a criminal record) for persons arrested for certain crimes without remaining clear of a criminal record for a specified number of years); Megan C Kurlychek, Robert Brame, and Shawn D Bushway, Enduring Risk? Past Criminal Records and Predictions of Future Criminal Involvement, 53crime and delinquency64 (2007) (analyzing youth police contacts and Racine, Wisconsin police contacts for a set of offenses of 670 men born in 1942 and determining that the risk of recidivism at age seven is equivalent to that of a person no criminal record); Megan C. Kurlychek et al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offenses?, 5Criminology and Pub. Polytechnic SchoolIn it. the risk of a new arrest is close to that of a person who has never been arrested).

119 Griggs, 401 EE. UU. en 431.

120 523 F.2d in 1298; see also field v. Orkin Extermination Co., Civil No. A. 00-5913, 2002 WL 32345739, at *1 (E.D. Pa. Feb 21, 2002) (unpublished) ("[The] general policy of denying employment to anyone with a criminal conviction is a violation [per se ] of Title VII"). The only exception would be where such exclusion is required by federal law or regulation. See, for example, footnote 110 above.

121 Cf. Feld, 2002 WL 32345739, at *1. In Field, a 10-year employee was fired after a new company taking over his previous employer discovered his 6-year felony conviction. The new company had a general policy less than 10 years ago of firing anyone with a criminal conviction. The court granted the worker summary judgment because the employer's argument that his conviction related to his professional qualifications was "weak at best," particularly given his positive employment history with his employer. former. Identity.

122 Recidivism rates tend to decline as ex-offenders age. A 2011 study found that a person's age at conviction is a variable that has a "substantial and significant impact on recidivism." The Predictive Value of Criminal Background Checks, footnote 99, page 43. For example, 26-year-olds in the study with no criminal record had a 19.6% chance of recidivism in the first year after their first conviction, compared to compared to 36-year-olds with a probability of recurrence of 8.8% in the same period and 46-year-olds with a probability of recurrence of 5.3%. Identity. at 46. See alsoPatrick A. Langan und David J. Levin, Bureau of Justice Statistics, US Department of Justice, Special Report: Inmate Recidivism Published 1994, at 7 (2002), https://www.bjs.gov/content/pub/pdf/rpr94.pdf (noting that 55.7% of 14-year-old ex-prisoners released in 199417 died within three years, the percentage dropped to 29.7% for ex-convicts aged 45 and over who were released in the same year).

Consideration of the plaintiff's age at the time of the offense or when released from prison would benefit older persons and therefore would not violate the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Sections 621 et seq. See the Age Discrimination in Employment Act, 29 C.F.R. § 1625.2 ("Preferring an older person to a younger person on the basis of age is not unlawful discrimination under ADEA, even if the younger person is at least 40 years of age"); see also Gen. Dynamics Land Sys., Inc. v.

123 Siehe Laura Moskowitz, Statement by Laura Moskowitz, Labor Lawyer, National Employment Law Project Second Chance Work Project,US Emp't Equal Opportunity Community, http://www.eeoc.gov/eeoc/meetings/11-20-08/moskowitz.cfm (last accessed April 23, 2012) (stating that one of the factors influencing the assessment of the risk of a former hermit for a workplace and for business needs analysis, is the "length and consistency of the person's career, even if the person has been recently employed"; he also notes that several studies "show a strong association between employment and crime reduction and show recidivism") . . But see Stephen J. Tripodi et al., Is Employment Associated With Reduced Recidivism?: The Complex Relationship Between Employment and Crime, 54J. International Offender Therapy and Comp. criminology716, 716 (2010) (while "post-incarceration employment, while it appears to provide an initial motivation to leave the offense, by itself does not appear to be sufficient to prevent recidivism for many probation officers").

124 verWendy Erisman & Jeanne Bayer Contardo, Institute of Higher Education. Politics, Learning to Reduce Recidivism: An Analysis of 50 Post-Secondary Correctional Facilities 5(2005), http://www.ihep.org/assets/files/publications/g-l/LearningReduceRecidivism.pdf (noting that higher education for inmates increases their employment prospects and serves as a cost-effective approach to reducing recidivism) ; see also John H. Laud and Robert J. Sampson, Understanding Deistance from Crime, 28crime and fair🇧🇷 1, 17""24 (2001), http://www.ncjrs.gov/pdffiles1/Digitization/192542-192549NCJRS.pdf (stating that factors related to personal rehabilitation and social stability, such as z and Recovery of substance abuse is correlated with a lower risk of relapse).

125 Some employers expressed a greater willingness to hire ex-offenders who had an ongoing relationship with third-party agencies that provide support services such as drug testing, social services referrals, transportation, childcare, clothing, and food. See Amy L. Solomon et al., From Prison to Work: The Employment Dimensions of Prisoner Reentry, 2004 Urban Inst. 20, https://www.urban.org/research/publication/prison-work. These types of services can help ex-offenders avoid problems that could affect their ability to get and keep a job. Identity.; see generally Victoria Kane, July 26, 2011 Meeting Transcript, USA Equal Emp't Opportunity Comm'n, http://www.eeoc.gov/eeoc/meetings/7-26-11/ transcript.cfm#kane (last visited April 23, 2012) (describes why employers should work with organizations to work together to provide support services to ex-offenders).

126 See generalsMythbuster Reentry! in the federal bond program, supra note 16; Work Opportunity Tax Credit (WOTC),Emp't & Training Admin., US Department of Labor, http://www.doleta.gov/business/incentives/optax/ (accessed April 3, 2012); Directory of State Linkage Coordinators,Emp't & Training Admin., US Department of Labor, https://bonds4jobs.com/our-services/directory (last accessed April 3, 2012); Federal Bail Bond Program - History,US Department of Labor, http://www.bonds4jobs.com/program-background.html (accessed April 3, 2012); Bureau of Prisons: UNICOR Federal Bonding Program, https://www.unicor.gov/Inmate_Bonding.aspx (accessed April 3, 2012).

127 This example is loosely based on a study by Alfred Blumstein and Kiminori Nakamura measuring the risk of recidivism for people who have committed shoplifting, robbery, or aggravated assault. See Blumstein & Nakamura, supra note 118.

128 42 USC § 2000e-2(k)(1)(A)(ii), (C). See also Watson v. Fort Worth Bank & Trust, 487 USA 977, 998 (1988).

129 See Ex. Request No. 12,067, 3 C.F.R. 206 (1978 cf.).

130 See 49 U.S.C. §§ 44935(e)(2)(B), 44936(a)(1), (b)(1). The law requires a criminal investigation.

131 See 5 U.S.C. Section 7371(b) (requires mandatory removal of officers convicted of felonies).

132 See 42 U.S.C. Section 13041(c) (“Any conviction of a sex offense, a felony involving a child, or a drug-related offense may be grounds for refusal to hire or discharge of an employee…”).

133 12 USC § 1829.

134 46 USC § 70105 (c).

135 Other jobs and programs subject to restrictions imposed by the federal government due to criminal convictions include insurance business (18 U.S.C. § 1033(e)), social worker (29 U.S.C. § 1111(a)), Medicare participation, and public health care. . Custody programs (42 U.S.C. §1320a-7(a)""(b)), defense contractors (10 U.S.C. §2408(a)), prisoner transportation (42 U.S.C. §13726b(b)(1)), and employment court-imposed restrictions (18 U.S.C §§ 3563(b)(5), 3583(d)). This list is not intended to be complete.

136 See, p. B. Federal Laws Relating to Commercial Motor Vehicle Driver's Licenses (49 U.S.C. § 31310(b)-(h)), Machinist's Licenses (49 U.S.C. § 20135(b)(4)(B )), and Certificates, Ratings, and approvals for pilots, flight instructors, and ground instructors (49 U.S.C. §§ 44709(b)(2), 44710(b), 4711(c); 14 CFR § 61.15).

137 See, for example, federal statutes governing the licensing/registration of lenders (12 U.S.C. §5104(b)(2)), Registration of brokers and merchants (15 U.S.C. §78o(b)(4)(B ) ), Trader Commodity Registry (7 U.S.C. § 12a(2)(D), (3)(D), (E), (H)), and Investment Adviser Registry (15 U.S.C. § 80b-3(e )(2)-( 3 ) , (f)).

138 See, for example, customs broker licenses (19 U.S.C. § 1641(d)(1)(B)), export licenses (50 U.S.C. App. § 2410(h)), and arms exports (22 U.S.C. § 2778 (g) ) .

139 See, p. B. Grain inspector licenses (7 U.S.C. § 85), merchant mariner certificates, licenses or registration certificates (46 U.S.C. § 7503(b)), licenses to import, manufacture, or trade in explosives, or permits to use explosives (18 U.S.C. § 843(d) ) and farm worker registration certificates (29 U.S.C. § 1813(a)(5)). This list of federally imposed restrictions on professional licenses and registrations for people with certain felony convictions is not intended to be exhaustive. For more information, contact the appropriate federal agency or department.

140 See 12 U.S.C. Section 1829(a)(1). The law imposes a 10-year bar on persons convicted of certain financial crimes, such as B. Bribery in connection with the acceptance of a kickback or gift to obtain a loan (18 U.S.C. § 215), embezzlement, or theft of a loan by officer/employee, credit or insurance institution (18 U.S.C. § 657), providing false or fraudulent information from an employee of the Federal Reserve or depository authority (18 U.S.C. § 1005), or wire, radio fraud or television involving a financial institution (18 U.S.C. § 1343), among other felonies. See 12 U.S.C. Section 1829(a)(2)(A)(i)(I), (II). Individuals convicted of the offenses listed in Section 1829(a)(2)(A) or conspiracy to commit those offenses will not receive a waiver of the FDIC's 10-year bar application. 12 USC § 1829(a)(2)(A).

141 versionGefüttert. In s. Kaution Corp., FDIC Policy Statement for Section 19 of the FDI Act, § C, „Procedures“(modified May 13, 2011), http://www.fdic.gov/regulations/laws/rules/5000-1300.html [hereinafterFDIC-Policy🇧🇷 see also Policy Statement, 63 Fed. Registry Number. 66,177, 66,184 (Dec. 1, 1998); Statement of Policy Explanation, 76 Fed. Registry Number. 28.031 (May 13, 2011) (Clarification of FDIC Policy Statement Regarding Section 19 of the FDI Act).

"Authorization will be granted automatically and no application [for a waiver] will be required if [a person convicted of] the registered offense [crimes related to dishonesty, breach of trust or money laundering]... the criteria ["of minimis"] ' as set forth in the FDIC policy statement.FDIC-Policy, above, § B(5). These criteria include: (1) there is only one sentencing or registration program for a registered offense; (2) the offense is punishable by imprisonment for one year or less and/or a fine of $1,000 or less and the person has not served jail time; (3) the conviction or program was filed at least five years before the date an application would be required; and (4) the offense did not involve an insured custodian or credit union. Identity. In addition, convicting a person of writing a "unpaid" check is considered a misdemeanor, even if it is an insured custodian or insured credit union, if: (1) all other requirements of the rules are met de minimis; (2) the total face value of the bad or bad checks identified in the conviction was $1,000 or less; and (3) no insured deposit or insured credit union was the beneficiary of any of the bad or insufficient funds checks on which the conviction was based. Identity.

142 versionFDIC-Policy, footnote 141, §C, “Procedure”.

143 id. More vgl.Nat'l H.I.R.E. Network, Criminals Working at Financial Institutions: The Rules for FDIC Waivers, http://www.hirenetwork.org/FDIC.html (“Institutions rarely seek a waiver, except for higher-level positions when the applicant is someone the institution intends to hire. Individuals can only apply for a FDIC approval without meeting the usual requirement when you apply to the FDIC. Most people probably don't know they have this right");lined deposit insurance. body 2010 Annual Report, Section VI.A: Key Statistics, 2008 FDIC Actions on Financial Institution Applications""2010 (2011), http://www.fdic.gov/about/strategic/report/2010annualreport/chpt6-01.html (reports that between 2008 and 2010, the FDIC received a total of 38 employment consent requests of people approved with covert crimes behind them; the Agency did not reject any applications during this period).

144FDIC-Policy, footnote 141, §D, “Evaluation of Section 19 Applications"(List factors considered in this waiver review process, including: (1) the nature and circumstances underlying the crime; (2) "[evidence] of rehabilitation, including the person's reputation since conviction. .age at time of conviction...and time elapsed since conviction"; (3) position in insured entity; (4) degree of influence/control the person can exercise over administrative matters; (5) the ability to manage the person's activities; (6) the level of involvement of the person with the insured entity; (7) whether the entity's fidelity insurance coverage applies to the person; (8) the opinion from the appropriate federal and/or state regulatory agencies; and (9) other essential factors).

145 See 49 C.F.R. §§ 1515.7 (describes, among other things, criminal waiver procedures), 1515.5 (explains how an initial threat assessment based on a criminal conviction may be appealed). In practice, some worker representatives have criticized TWIC's appeals process for long delays that leave many workers unemployed; especially workers of color. see in generalMaurice Emsellem et al., Nat'l Emp't Law Project, A Scorecard on Post-911 Dock Worker Background Checks: Model Worker Protections Provide a Lifeline for People of Color While Major Delays TSA macht Tausende arbeitslos während der Rezession(2009), http://nelp.3cdn.net/2d5508b4cec6e13da6_upm6b20e5.pdf.

The Patient Protection and Affordable Care Act, pub. L no 111-148, § 6201, 124 Statute. 721 (2010) (the Act) establishes a procedure for filing or challenging the accuracy of criminal record information. The law requires participating states to conduct background checks on applicants and current employees who have direct access to patients in long-term care facilities, such as nursing homes, to determine if they have been convicted of a felony or have other information that disqualifies them in their power. . , such as a finding of abuse by patients or residents, which would disqualify them for employment under the Social Security Act or as provided by state law. See 42 U.S.C. § 1320a-7l(a)(3)(A), (a)(4)(B), (6)(A)""(E). Background checks involve an individual assessment of the relevance of a conviction or other disqualifying information. The law protects applicants and employees in a number of ways, including: (1) giving a prospective employee a 60-day grace period to complete the criminal history report; (2) provide an independent mechanism to submit or challenge the accuracy of information obtained from criminal background checks; and (3) allow the employee to remain employed during the appeal process (subject to direct on-site supervision). 42 USC § 1320a-7l(a)(4)(B)(iii), (iv).

146 See 46 U.S.C. § 70105(d); see generally TWIC Program, 49 C.F.R. § 1572.103 (lists disqualifying offenses for maritime and land transportation security credentials, such as convictions and findings of insanity for espionage, murder, or illegal possession of explosives; also lists disqualifying offenses temporarily, within seven years of conviction or five years without prison, including dishonesty, fraud or misrepresentation (expressly excluding welfare fraud and bad checks), infractions and distribution of firearms, intent to distribute or import controlled substances).

147 46 USC § 70105(c)(1)(A)""(B).

148 46 USC § 70105(c)(1)(B)(iii).

149 See 46 U.S.C. § 70105(c)(1)(A)(iv) (lists “Federal Crime of Terrorism” as a Permanently Disqualifying Offense); see also 18 U.S.C. § 2332b(g)(5)(B) (the definition of “federal terrorist offense” includes the use of weapons of mass destruction under § 2332a).

150 See 49 C.F.R. § 1515.7(a)(i) (clarification that only certain applicants with disqualifying offenses on their records may apply for a waiver; such applicants do not include persons charged with a federal terrorist offense described in 18 U.S.C. § 2332b(g)).

151 These positions are defined as “national security positions” and include positions “engaged in governmental activities related to the protection of the nation against foreign aggression or espionage, including the development of defense plans or measures, intelligence or counterintelligence activities, and related activities Activities to maintain the strength of the US military" or "require regular use of or access to classified information." 5 CFR § 732.102(a)(1)""(2). The requirements for "national security positions" apply to competitive service positions, senior executive service positions held by executive branch career appointment, and exempt executive branch service positions Identity § 732.102(b) The head of any federal agency may designate any position within that department or agency as a "sensitive position" if the position is due to the nature of the position could have an effect material adverse to national security". Identity. §732.201(a). Designating an item as a "sensitive item" falls into one of three sensitivity levels: especially sensitive, critically sensitive, or not critically sensitive. Identity.

152 See Ex. Request No. 12.968, §3.1(b), 3 C.F.R. 391 (1995 comp.):

[T]he authority to access Classified Information is granted only to employees who are citizens of the United States, for whom an adequate investigation has been conducted, and whose personal and professional history demonstrates loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion and judgment, and freedom from conflicting alliances and the potential for coercion, and the willingness and ability to comply with regulations relating to the use, handling and protection of classified information. Determining the authority to access such information is a discretionary security decision based on the judgment of appropriately trained court personnel. Authorization is granted only when the facts and circumstances indicate that access to classified information is clearly consistent with the national security interests of the United States and concerns are resolved in favor of national security.

153 42 USC § 2000e-2(g); see, for example, Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C. Cir. 2005) ("[Employment] acts based on denial of security clearance are not subject to judicial review, including under Title VII"); ryanv Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) ("[A]n prejudicial employment actions based on the denial or revocation of a security clearance are not punishable under Title VII").

154 See the Policy Guidance on the Use of the National Security Exception contained in Section 703(g) of Title VII of the Civil Rights Act of 1964, as amended,US Emp't Equal Opportunity Community, § II, Legislative History (May 1, 1989), http://www.eeoc.gov/policy/docs/national_security_exemption.html ("[N]ational security requirements apply regardless of race, sex, color, religion or national origin."); see also Jones v. Ashcroft, 321 F. Supp. 2d 1, 8 (D.D.C. 2004) (stating that the national security exception did not apply because there was no evidence that the Government considered national security to be the basis for its decision not to hire the author at any time before starting to write when the author did not go directly to the arrest).

155 Federal contract employees may appeal a denial of a security clearance to the EEOC or the Office of Contract Compliance Programs if the denial is based on race, color, religion, sex, or national origin. See general executive. Application No. 11,246, 3 C.F.R. 339 (1964" "1965 ed.).

156 42 USC § 2000e-16(a).

157 Robert H. Shriver, III, Written Testimony of Robert H. Shriver, III, Senior Policy Advisor, United States Office of Personnel Management,US Emp't Equal Opportunity Community, http://www.eeoc.gov/eeoc/meetings/7-26-11/shriver.cfm (last accessed April 23, 2012) (stating: “With few exceptions, felony convictions do not automatically disqualify to a candidate for competitive civil service employment"); See alsoMythbuster Reentry! about federal hiring policies, above note 16 (“The Federal Government employs people with criminal records who have the necessary knowledge, skills, and abilities”). But see footnote 110 above, which lists various federal statutes that prohibit people of certain faiths from working as federal police officers or stevedores or with private prisoner transport companies.

158 OPM is responsible for establishing the federal government's eligibility policy for competitive service positions, certain exempt service positions, and career appointments for senior executives. See 5 C.F.R. §§ 731.101(a) (stating that the OPM was directed to "assess 'fitness' for competitive federal employment"), 731.101(b) (definition of positions within the scope of the OPM); see also Shriver, note 157.

OPM is also responsible for setting standards that help government agencies decide whether to provide their employees and contractors with long-term access to federal information systems and facilities. See Homeland Security Presidential Directive 12: Policy for a Common Identification Standard for Federal Employees and Contractors, 2Pub. documents1765 (August 27, 2004) ("establishing a mandatory government standard for secure and reliable forms of identification issued by the federal government to its employees and contractors [including contract employees]"); see also executive. Order Number 13.467, § 2.3(b), 3 C.F.R. 196 (Comp. 2009) (“[The] director of the [OPM]… [is] responsible for the development and implementation of uniform and consistent policies and procedures to ensure the effective, efficient and timely completion of investigations and trials related to the suitability and authorization findings for logical and physical access."); see generally Shriver, footnote 157.

159 5 CFR § 731.101(a).

160 See 5 C.F.R. §§ 731.205(a) (provided that if an agency finds applicants unfit based on factors listed in 5 C.F.R. § 731.202, it may, in its sole discretion, bar such applicants from federal employment for a period of three years), § 731.202 (b) (Grounds for disqualification from federal government service may include: misconduct or negligence in employment; material misrepresentation, intentional or fraud, or fraud in examination or appointment; refusal to testify under 5 C.F.R. § 5.4; alcohol abuse without proof of essential rehabilitation; illegal use of narcotics, drugs, or other controlled substances, and knowingly and intentionally engaging in acts or activities designed to overthrow the U.S. government by force) .

161 bloods. § 731.202(c).

162 id.

163 See generally Shriver, footnote 157. See alsoMythbuster Reentry! about federal hiring policies, footnote 16 (“Under the principles of the merit system, [state] agencies [and departments] must consider individuals with criminal records when filling vacancies if they are the best candidates and can meet the requirements.”).

164 See EEOC's General Informal Discussion Letter (March 19, 2007), https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-175 (discussing EEOC's concerns about changes to the OPM eligibility requirements in 5 CFR Part 731 ).

165 See Stephen Saltzburg, 7/26/11 Meeting Transcript,US Emp't Equal Opportunity Community, http://www.eeoc.gov/eeoc/meetings/7-26-11/transcript.cfm#saltzburg (last accessed April 23, 2012) (discussing the findings of the American Bar's Collateral Consequences of Conviction Association (ABA ) Project, which found that in 17 states it has studied so far, 84% of collateral convictions against ex-offenders are work-related). For more information on the ABA Project, see: Janet Levine, ABA Criminal Justice Section Collateral Consequences Project,Institute for Research Studies, Temple Univ., http://isrweb.isr.temple.edu/projects/accproject/ (accessed April 20, 2012). In April 2011, Attorney General Holder sent a letter to all attorneys general, with copies to all governors, asking them to assess "secondary consequences" of felony convictions in their state, such as determining whether those [consequences] should be removed, incriminating individuals... without increasing public safety." Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to State Attorneys General and Governors (April 18, 2011), http:/ /www.nationalreentryresourcecenter.org/ documents/0000/1088/Reentry_Council_AG_Letter.pdf.

Most states regulate occupations that involve responsibilities for vulnerable citizens such as the elderly and children. To seeState crime history, footnote 37, p. 10 (“Fifty states and the District of Columbia report that criminal record checks are required by law” for various occupations, such as non-teaching personnel). For example, the Hawaii Department of Human Services may deny applicants license privileges to operate a day care center if: (1) the applicant or a prospective employee has been convicted of a felony other than a minor traffic violation or it has been confirmed that you have abused or neglected a child or threatened to harm a child; and (2) the Department believes that the applicant's or prospective employee's criminal or child abuse history may pose a risk to the health, safety, or welfare of children. To seeHa ha. Rev Status. § 346-154(e)(1)""(2).

166 42 USC § 2000e-7.

167 See International Union v. Johnson Controls, Inc., 499 USA 187, 210 (1991) (noting that “[i]f state tort laws encourage discrimination in the workplace and prevent employers from hiring women who may work as efficiently as men do or they will impede achievement of the purposes of Congress in enacting Title VII"); Gulino v. NY State Educ. Dep't, 460 F.3d 361, 380 (2nd Cir. 2006) (Acknowledgment of Conclusion of the District Court that "State law mandates are not a defense of liability under Title VII").

What human resources strategy is most compatible with the Union?

Unions are more compatible with organizations that have a specialized and committed human resources strategy. Cost-oriented organizations are incompatible with unions due to the lower productivity of unionized workers. Unions are compatible with organizations that aexternal work strategy.

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Strategies that help make union acceptance more difficult include:.

Fair and consistent policies and practices.

Open door management guidelines.

Competitive salary and benefits...

Trust and recognition of employees.

What positive contributions can unions make to organizations following the Loyal Soldier human resources strategy?

What positive contributions can unions make to organizations that follow the Loyal Soldier human resources strategy?Costs tend to be higher for unionized organizations🇧🇷 Unionized organizations tend to spend less on capital development. The benefits of a stable workforce help maintain high quality.

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What are the three disadvantages of joining a union?

Unions collect dues to pay the salaries of union leaders and workers during a strike. And unfortunately, some unions spend union dues on six-figure executive salaries and fancy headquarters. Other disadvantages of union membership areless autonomy, workplace tensions and slower progress.


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