The EEOC recently provided an update regarding an employer’s use of arrest and criminal records as part of a hiring criteria. An employer’s use of an arrest or criminal record may violate Title VII because the EEOC has found that these hiring policies may have a disparate impact of African-Americans and Hispanic men. Accordingly, the employer may be opening itself up to liability based on a disparate impact claim for national origin or race.
The EEOC distinguished between an arrest and a conviction. It found that an arrest does not demonstrate that the criminal conduct actually occurred. Therefore, denying someone employment based on an arrest is not sufficient grounds to claim a business necessity because it is not job related. However, the employer may take into account the underlying allegations of the arrest if that conduct makes the employee unfit for the job.
Title VII and NJ’s Law Against Discrimination do not protect employees with criminal records. Accordingly, in order to prevail on a claim that you were denied a job because of an arrest or criminal record, you need to demonstrate that the employer treated similarly-situated applicants of a different race or national origin with a similar criminal history more favorably than you. You can also establish a claim by demonstrating that a disparate impact on minorities.