Discrimination Prohibited: On April 25, 2012, the EEOC updated its regulations on employer use of arrest and conviction records in employment decisions under Title VII. Although not a claim of its own under Title VII, arrest and conviction record may be used to discriminate against employees if employees with the same criminal record are treated differently based on their race, color, religion, sex, or national origin OR if the exclusion is applied uniformly but disproportionally and unjustifiably excludes people of a particular race or national origin. If the uniform application does create a disparate impact on a certain race or national origin, the employer has to show that the exclusion is job related and consistent with a business necessity. The EEOC suggests that the employer should partake in an individual assessment of this and consider the nature of the crime, the time elapsed, and the nature of the job.
Under the Wisconsin Fair Employment Act, discrimination on the basis of arrest and conviction record is illegal in and of itself. However, these EEOC guidelines may help bolster related claims, such as race and national origin discrimination. Contact Heins Law Office discrimination attorneys for more information:
Q&A About the EEOC's Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII http://www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm