Disparate Treatment and Adverse Impact Kimberley Taylor-Riley, Director of Equity and Diversity

Scope of Presentation: Arrest, Credit History, Employment Status & Use of Social Media

Credit History Grave concerns expressed by Nation Consumer Law Center, that the use of credit histories is mushrooming at the time of economic instability for many Americans (noting that the use of credit histories creates a fundamental Catch-22 for job applicants). 10/2010 EEOC public mtg. You can’t re-establish your credit if you can’t get a job, and you can’t get a job if you’ve got bad credit. The use of credit histories in the employment context can have a disparate impact on a range of protected groups. Additionally, credit history is a poor predictor of job performance.

Statistical Data In the last 20 years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system. In 1991, only 1.8% of the adult population had served time in prison. In 2001, 2.7% (1 in 37 adults) In 2007, 3.2% of all adults in the U.S. (1 in 31) were under some form of correctional control.

Statistical Data African American and Hispanic men are arrested at a rate that is 2-3 times their proportion of the general population. If the rates remain unchanged, 1 in 17 white men are expected to serve time in prison in their lifetimes; 1 in 6 for Hispanic men; 1 in 3 for African American men.

Arrest vs. Conviction Per DOJ, as of 2010, many state criminal history record repositories still had not recorded the final dispositions for a significant number of arrests. Per DOJ, in 2006, only 50% of arrest records in the FBI’s database were associated with a final disposition.

Arrest vs. Conviction Businesses that sell criminal history information in consumer reports may not report records of arrests that did not result in entry of a judgment of conviction if the arrests occurred more than seven years ago. They may report convictions indefinitely.

Disparate Treatment A covered employer is liable for violating Title VII when it treats similarly situated individuals differently based upon protected class status. Two applicants, similar backgrounds, education, work experience, criminal histories. One (w/m) is referred for interview, the other (b/m), rejected.

Disparate Impact Identify the particular policy or practice that causes the unlawful disparate impact. For criminal conduct exclusions: the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. Such information should include which offenses of classes thereof were reported (all felonies, all misdemeanors)

Disparate Impact Continued National data as set out in the previous statistical data, supports a finding that criminal record exclusions have a disparate impact based on race and national origin. An employer may defend by presenting regional or local data showing that African American or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s particular geographic area.

Disparate Impact Continued Demonstrating a racially balanced workforce will not be enough to disprove disparate impact, the issue is whether the policy or practice deprives a disproportionate number of Title VII- protected individuals of employment opportunities.

Criminal Record Exclusion The Green v. Missouri Pacific RR factors to consider when excluding any applicant with a conviction for any crime other than minor traffic: Nature and gravity of the offense or conduct; The time that has passed since the offense or conduct and/or completion of the sentence; and The nature of the job held or sought.

More Exclusions See El v. Southeastern Pennsylvania Transportation Authority 2007 El was a 55 y.o. AA Para transit driver- trainee and he was terminated when SEPTA learned of his conviction for 2 nd degree murder 40 years earlier. The conviction resulted from a gang fight when he was 15 and he had no other disqualifying offenses.

Exclusions Continued The 3 rd circuit expressed reservations about a policy that excludes all violent crimes no matter how long ago they were committed. Title VII requires employers to justify criminal record exclusions by demonstrating that they ‘accurately distinguish’ between applicants who pose an unacceptable level of risk and those who do not.

More Exclusions See Fletcher, Pro se v. Berkowitz Oliver Williams et al 2008 Fletcher was convicted of rape and related offenses in Defendants became aware of Plaintiff’s rape conviction through assertions by female employees who expressed serious concerns about working with a convicted rapist.

Exclusions Continued The 8 th circuit said there was no showing that the Defendants employed a general policy or practice that prohibited the employment of individuals with prior felony convictions. The Plaintiff was not even asked the question before hire. The Court was willing to entertain evidence of racial disparity in sex offender statistics, but the Plaintiff failed to provide any evidence in this regard.

Exclusions Continued The Court felt the requested statistics could be significant if not dispositive of the matter. According to the Defendant’s evidence, the Plaintiff’s name was, and continued to be on the Missouri Sex Offender List, and his termination was based on the nature of the offense and the legitimate concerns of his co-workers.

Exclusions Continued The Court felt the requested statistics coupled with a policy on the part of the Defendant was required to establish a prima facie case. The Defendant’s Motion for Summary Judgment was granted.

Arrests The fact of an arrest does not establish that criminal conduct has occurred. Many arrests do not result in criminal charges or the charges are dismissed. The presumption of innocence attaches until conviction. An exclusion based on an arrest, in itself, is not job related and consistent with business necessity.

Arrests Continued Arrest records also may include inaccuracies or may continue to be reported even if expunged or sealed.

Arrests Continued Arrest records also may include FTA (failure to appear) warrants/arrests that were entered in civil matters. For instance, attempts to gather information so that a money judgment can be enforced can result in arrests when the debtor fails to appear for the hearing.

Arrests Continued Such an arrest appears on the criminal history as an FTA arrest without any corresponding criminal charge. Since the person was actually arrested, it would be difficult, if not impossible, to expunge the arrest from the debtor’s record.

Arrests Continued In addition to the issues created by use of credit histories, these types of circumstances create yet another hurdle for the long-term unemployed to overcome.

Convictions A record of a conviction will usually serve as sufficient evidence that a person engaged in particular conduct, given the procedural safeguards associated with trials and guilty pleas. However, there may be evidence of an error in the record, an outdated record, or another reason for not relying on the evidence of a conviction.

Best Practices Commission recommends that employers not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related to the position in question and consistent with business necessity.

Best Practices For Employers Make sure you are treating everyone equally! Do not seek background checks on some applicants but not others, especially if it could appear based on an impermissible protected class factor. Do not ask any medical questions before a condition job offer is extended. After employment, only ask if you have objective evidence that the employee is unable to do the job or poses a risk.

Best Practices For Employers If you get background information from a company you must: Tell the applicant you might use the information for decisions about his/her employment in writing in stand-alone format and get written permission. If the report will be based on personal interviews re: character, general reputation, lifestyle, tell the applicant of his/her right to a description of the nature and scope of the investigation.

Best Practices For Employers When using background information: Take special care when basing employment decisions on identified issues that these issues are not more common among people of a particular protected class; Focus your decision on whether the information accurately predicts who will be a responsible, reliable or safe employee.

Best Practices For Employers Before taking adverse action based on background information, you must: Give the applicant notice that includes a copy of the consumer report you relied upon.

Best Practices For Employers Afterwards, you must: Tell the applicant they were rejected due to information in the report; the name, address, phone number of company providing it; the company did not make the hiring decision and can’t give the reasons for it; and their right to dispute the accuracy/completeness of the report and to get an additional free report from the company within 60 days.

Best Practices For Employers Disposal: Preserve applications and other hiring related documents for one year (two years for educational institutions, state and local governments) after creation or after action was taken whichever comes later. Be sure to dispose of the records securely to protect applicant privacy.

Use of Social Media According to U. S. EEOC Press Release 03/12/2014: Improper use of information obtained from LinkedIn and Facebook may be discriminatory since most individual’s race, gender, general age and possibly ethnicity can be discerned from their profiles.

Use of Social Media Continued To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check and only use publicly available information. Do not request usernames/passwords for social media accounts as some states already have laws prohibiting this.

Use of Social Media Continued Even if employees post harassing or derogatory information about coworkers away from the workplace, an employer may be liable for a hostile work environment if: 1) it was aware of the postings, or 2) if the harassing employee was using employer-owned devices or accounts. A federal claim of racial harassment was allowed to proceed based on a co- workers Facebook postings.

Use of Social Media Continued There has been an increased use of social media as a source of discovery in employment discrimination litigation, even where housed on third-party sites. The increased effort to access private social media communications may have a chilling effect on persons seeking to exercise their rights under federal anti- discrimination laws.

Thank You So Much For All You Do!! Kimberley Taylor-Riley Director of Equity and Diversity 555 South 10 th Street, #304 Lincoln, NE