The federal discrimination laws, and the Equaly Employment Opportunity Commission in the enforcement of them, prohibit discrimination based on disparate treatment and disparate impact.
Disparate treatment discrimination is straight forward. An employment practice or policy may directly treat one class differently than another; for example, no women can be hired, no minorities will be promoted, etc.
Disparate impact is different. In this case, a policy or practice on its face may be neutral, seemingly not adversely affecting any class of employees. However, the application or enforcement of the policy may in fact, bring about this type of adverse, therefore discriminatory, impact.
The concept of disparate impact can occur in the hiring process. Now more than ever, employers need increased information about applicants before it makes the hiring decision. Can this quest for information include examining an applicant's arrest record?
The EEOC has taken the position that the use of arrest records as an absolute bar to employment has a disparate impact upon minorities. Accordingly, the use of arrest records alone cannot be used to routinely deny employment.
However, this prohibition is not absolute – at least in principle. A three-step process must be used. First, the conduct alleged in the arrest record must relate to the job at issue.
This is not enough. The employer must examine the circumstances surrounding the arrest, including giving the applicant an opportunity to provide his/her side of the story. If the applicant denies engaging in the conduct, the EEOC states the employer then must make follow–up inquiries to determine the credibility of the applicant.
This process is difficult, if not impossible, to complete. Basically, if the employer is to rely upon the arrest record to make the hiring decision, it must confirm the applicant actually engaged in the conduct for which the arrest occurred, and that this conduct was job-related. Since an employee may never be able to complete this type of analysis, arrest records are not used in the decision not to hire an applicant.
Opinions are solely the writer's. James Jorgensen practices law at Hoeppner Wagner & Evans in Valparaiso.
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