By Grace Donaldson

On April 25, 2012, the U.S. Equal Employment Opportunity Commission issued its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e.

Title VII prevents employment discrimination on the basis of race, color, religion, sex or national origin. Additionally, Title VII prohibits employers from treating job applicants with the same criminal records differently because of their race, color, religion, sex or national origin.  This is disparate treatment discrimination.

When an employer applies certain criteria that disproportionately exclude people of a particular race or national origin, even when there is no intent to discriminate, disparate impact discrimination occurs. If employers use criminal conviction as a criterion for not hiring, they must show that the practice of exclusion is job-related and consistent with business necessity.

Further, the Equal Employment Opportunity Commission states that national data support a finding that criminal record exclusions have a discriminatory disparate impact based on race and national origin and therefore a violation of Title VII.  Disparate impact protection also extends to other protected classes, such as veterans and individuals with disabilities.

What does this mean for employers? On Guam, it is common practice among employers to request for police and court clearances to be submitted along with the job application. While requesting for clearances is not illegal, using these clearances to automatically exclude job candidates with less than pristine records could be a violation of Title VII by practicing illegal, disparate impact discrimination.

How does one determine if the conviction is job-related and consistent with business necessity?

1) The employer must consider the nature of the crime, the time since the conviction occurred and the nature of the job.

2) The employer must give the individual with the criminal background, who might otherwise be excluded, an opportunity to show why he or she should not be excluded from consideration.

The best practice would be for employers to request the police and court clearance after they have reviewed the application and interviewed the candidate and not before.

I suggest that police and court clearances be treated like any pre-employment tests, such as drug screens and physicals. They are requested only after a job offer is made.

— Grace Donaldson is the general manager of Pacific Human Resource Services Inc. and can be reached at [email protected], (671) 637-6906/7/8 or www.phrsguam.com.