State of Texas v. EEOC et al

Filing 17

Appendix in Support filed by Jacqueline Berrien, EEOC re 16 Brief/Memorandum in Support of Motion (Sandberg, Justin)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,
Plaintiff,
v.
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION, et al.,
Defendants

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Civil No. 5:13-CV-00255-C
ECF

APPENDIX TO MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

EEOC, Consideration of Arrest and Conviction Records in Employment
Decisions Under Title VII (EEOC Guidance), No. 915.002
(April 25, 2012) .......................................................................................... App 0001
EEOC, Compliance Manual, § 15-VI.B.2, April 19, 2006 .................................. App 0056
EEOC, Policy Statement on the Issue of Conviction Records,
February 4, 1987 ......................................................................................... App 0113
EEOC, Policy Statement on the Issue of Conviction Records, July 29, 1987 ..... App 0116

Appendix to Mtn. to Dismiss - Page 1

CERTIFICATE OF SERVICE
I hereby certify that, on January 27, 2014, a true and correct copy of the foregoing was
served by CM/ECF on:
Jonathan F. Mitchell
Andrew Stephen Oldham
Arthur D’Andrea
Office of the Texas Attorney General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711-2548
s/ Justin M. Sandberg
JUSTIN M. SANDBERG
Trial Attorney
U.S. Department of Justice

Appendix to Mtn. to Dismiss - Page 2

EEOC Enforcement Guidance

Number
915.002
Date
4/25/2012

1.

SUBJECT: 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 et seq.

2.

PURPOSE: The purpose of this Enforcement Guidance is to consolidate and update the
U.S. Equal Employment Opportunity Commission’s guidance documents regarding the
use of arrest or conviction records in employment decisions under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.

3.

EFFECTIVE DATE: Upon receipt.

4.

EXPIRATION DATE: This Notice will remain in effect until rescinded or superseded.

5.

ORIGINATOR: Office of Legal Counsel.

0001

Consideration of Arrest and Conviction Records in Employment Decisions Under
Title VII of the Civil Rights Act of 1964
Table of Contents
I.

Summary

1

II.

Introduction

3

III.

Background

4

A.
B.
C.

4
6

Criminal History Records
Employers’ Use of Criminal History Information
The EEOC’s Interest in Employers’ Use of Criminal Records in
Employment Screening

6

IV.

Disparate Treatment Discrimination and Criminal Records

6

V.

Disparate Impact Discrimination and Criminal Records

8

A.

B.

C.

Determining Disparate Impact of Policies or Practices that Screen
Individuals Based on Records of Criminal Conduct
1.
Identifying the Practice or Policy
2.
Determining Disparate Impact
Job Related for the Position in Question and Consistent with
Business Necessity
1.
Generally
2.
Arrests
3.
Convictions
4.
Determining Whether a Criminal Conduct Exclusion Is Job
Related and Consistent with Business Necessity
5.
Validation
6.
Detailed Discussion of the Green Factors and Criminal
Conduct Screens
a. The Nature and Gravity of the Offense or Conduct
b. The Time that Has Passed Since the Offense, Conduct
and/or Completion of the Sentence
c. The Nature of the Job Held or Sought
7. Examples of Criminal Conduct Exclusions that Do Not Consider
the Green Factors
8. Targeted Exclusions that Are Guided by the Green Factors
9. Individualized Assessment
Less Discriminatory Alternatives

9
9
9
10
10
12
13
14
14
15
15
15
16
16
17
18
20

0002

VI.

Positions Subject to Federal Prohibitions or Restrictions on Individuals
with Records of Certain Criminal Conduct
A.
B.
C.
D.
E.

VII.

VIII.

Hiring in Certain Industries
Obtaining Occupational Licenses
Waiving or Appealing Federally Imposed Occupational
Restrictions
Security Clearances
Working for the Federal Government

20
20
21
21
23
23

Positions Subject to State and Local Prohibitions or Restrictions on Individuals
with Records of Certain Criminal Conduct

24

Employer Best Practices

25

0003

I.

Summary
•

An employer’s use of an individual’s criminal history in making employment
decisions may, in some instances, violate the prohibition against employment
discrimination under Title VII of the Civil Rights Act of 1964, as amended.

•

The Guidance builds on longstanding court decisions and existing guidance
documents that the U.S. Equal Employment Opportunity Commission (Commission
or EEOC) issued over twenty years ago.

•

The Guidance focuses on employment discrimination based on race and national
origin. The Introduction provides information about criminal records, employer
practices, and Title VII.

•

The Guidance discusses the differences between arrest and conviction records.
•

•

•

The fact of an arrest does not establish that criminal conduct has occurred, and an
exclusion based on an arrest, in itself, is not job related and consistent with
business necessity. However, an employer may make an employment decision
based on the conduct underlying an arrest if the conduct makes the individual
unfit for the position in question.
In contrast, a conviction record will usually serve as sufficient evidence that a
person engaged in particular conduct. In certain circumstances, however, there
may be reasons for an employer not to rely on the conviction record alone when
making an employment decision.

The Guidance discusses disparate treatment and disparate impact analysis under Title
VII.
•

A violation may occur when an employer treats criminal history information
differently for different applicants or employees, based on their race or national
origin (disparate treatment liability).

•

An employer’s neutral policy (e.g., excluding applicants from employment based
on certain criminal conduct) may disproportionately impact some individuals
protected under Title VII, and may violate the law if not job related and
consistent with business necessity (disparate impact liability).
o National data supports a finding that criminal record exclusions have a
disparate impact based on race and national origin. The national data
provides a basis for the Commission to investigate Title VII disparate
impact charges challenging criminal record exclusions.

1

0004

o Two circumstances in which the Commission believes employers will
consistently meet the “job related and consistent with business necessity”
defense are as follows:
•

The employer validates the criminal conduct exclusion for the
position in question in light of the Uniform Guidelines on Employee
Selection Procedures (if there is data or analysis about criminal
conduct as related to subsequent work performance or behaviors); or

•

The employer develops a targeted screen considering at least the
nature of the crime, the time elapsed, and the nature of the job (the
three factors identified by the court in Green v. Missouri Pacific
Railroad, 549 F.2d 1158 (8th Cir. 1977)). The employer’s policy then
provides an opportunity for an individualized assessment for those
people identified by the screen, to determine if the policy as applied is
job related and consistent with business necessity. (Although Title
VII does not require individualized assessment in all circumstances,
the use of a screen that does not include individualized assessment is
more likely to violate Title VII.).

•

Compliance with other federal laws and/or regulations that conflict with Title VII
is a defense to a charge of discrimination under Title VII.

•

State and local laws or regulations are preempted by Title VII if they “purport[]
to require or permit the doing of any act which would be an unlawful
employment practice” under Title VII. 42 U.S.C. § 2000e-7.

•

The Guidance concludes with best practices for employers.

2

0005

II.

Introduction

The EEOC enforces Title VII of the Civil Rights Act of 1964 (Title VII) which prohibits
employment discrimination based on race, color, religion, sex, or national origin. 1 This
Enforcement Guidance is issued as part of the Commission’s efforts to eliminate unlawful
discrimination in employment screening, for hiring or retention, by entities covered by Title VII,
including private employers as well as federal, state, and local governments. 2
In the last twenty years, there has been a significant increase in the number of Americans
who have had contact 3 with the criminal justice system 4 and, concomitantly, a major increase in
the number of people with criminal records in the working-age population. 5 In 1991, only 1.8%
of the adult population had served time in prison. 6 After ten years, in 2001, the percentage rose
to 2.7% (1 in 37 adults). 7 By the end of 2007, 3.2% of all adults in the United States (1 in every
31) were under some form of correctional control involving probation, parole, prison, or jail. 8
The Department of Justice’s Bureau of Justice Statistics (DOJ/BJS) has concluded that, if
incarceration rates do not decrease, approximately 6.6% of all persons born in the United States
in 2001 will serve time in state or federal prison during their lifetimes. 9
Arrest and incarceration rates are particularly high for African American and Hispanic
men. 10 African Americans and Hispanics 11 are arrested at a rate that is 2 to 3 times their
proportion of the general population. 12 Assuming that current incarceration rates remain
unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; 13
by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American
men. 14
The Commission, which has enforced Title VII since it became effective in 1965, has
well-established guidance applying Title VII principles to employers’ use of criminal records to
screen for employment. 15 This Enforcement Guidance builds on longstanding court decisions
and policy documents that were issued over twenty years ago. In light of employers’ increased
access to criminal history information, case law analyzing Title VII requirements for criminal
record exclusions, and other developments, 16 the Commission has decided to update and
consolidate in this document all of its prior policy statements about Title VII and the use of
criminal records in employment decisions. Thus, this Enforcement Guidance will supersede the
Commission’s previous policy statements on this issue.
The Commission intends this document for use by employers considering the use of
criminal records in their selection and retention processes; by individuals who suspect that they
have been denied jobs or promotions, or have been discharged because of their criminal records;
and by EEOC staff who are investigating discrimination charges involving the use of criminal
records in employment decisions.

3

0006

III.

Background

The contextual framework for the Title VII analysis in this Enforcement Guidance
includes how criminal record information is collected and recorded, why employers use criminal
records, and the EEOC’s interest in such criminal record screening.
A.

Criminal History Records

Criminal history information can be obtained from a wide variety of sources including,
but not limited to, the following:
•

Court Records. Courthouses maintain records relating to criminal charges and
convictions, including arraignments, trials, pleas, and other dispositions.17
Searching county courthouse records typically provides the most complete
criminal history. 18 Many county courthouse records must be retrieved on-site,19
but some courthouses offer their records online. 20 Information about federal
crimes such as interstate drug trafficking, financial fraud, bank robbery, and
crimes against the government may be found online in federal court records by
searching the federal courts’ Public Access to Court Electronic Records or Case
Management/Electronic Case Files. 21

•

Law Enforcement and Corrections Agency Records. Law enforcement agencies
such as state police agencies and corrections agencies may allow the public to
access their records, including records of complaints, investigations, arrests,
indictments, and periods of incarceration, probation, and parole. 22 Each agency
may differ with respect to how and where the records may be searched, and
whether they are indexed. 23

•

Registries or Watch Lists. Some government entities maintain publicly available
lists of individuals who have been convicted of, or are suspected of having
committed, a certain type of crime. Examples of such lists include state and
federal sex offender registries and lists of individuals with outstanding warrants. 24

•

State Criminal Record Repositories. Most states maintain their own centralized
repositories of criminal records, which include records that are submitted by most
or all of their criminal justice agencies, including their county courthouses. 25
States differ with respect to the types of records included in the repository, 26 the
completeness of the records, 27 the frequency with which they are updated, 28 and
whether they permit the public to search the records by name, by fingerprint, or
both. 29 Some states permit employers (or third-parties acting on their behalf) to
access these records, often for a fee. 30 Others limit access to certain types of
records, 31 and still others deny access altogether. 32

•

The Interstate Identification Index (III). The Federal Bureau of Investigation
(FBI) maintains the most comprehensive collection of criminal records in the
nation, called the “Interstate Identification Index” (III). The III database compiles

4

0007

records from each of the state repositories, as well as records from federal and
international criminal justice agencies. 33
The FBI’s III database may be accessed for employment purposes by:
•

the federal government; 34

•

employers in certain industries that are regulated by the federal
government, such as “the banking, nursing home, securities, nuclear
energy, and private security guard industries; as well as required security
screenings by federal agencies of airport workers, HAZMAT truck drivers
and other transportation workers”; 35 and

•

employers in certain industries “that the state has sought to regulate, such
as persons employed as civil servants, day care, school, or nursing home
workers, taxi drivers, private security guards, or members of regulated
professions.” 36

Recent studies have found that a significant number of state and federal criminal record
databases include incomplete criminal records.
 A 2011 study by the DOJ/BJS reported that, as of 2010, many state criminal
history record repositories still had not recorded the final dispositions for a
significant number of arrests. 37
 A 2006 study by the DOJ/BJS found that only 50% of arrest records in the FBI’s
III database were associated with a final disposition. 38
Additionally, reports have documented that criminal records may be inaccurate.
 One report found that even if public access to criminal records has been restricted
by a court order to seal and/or expunge such records, this does not guarantee that
private companies also will purge the information from their systems or that the
event will be erased from media archives. 39
 Another report found that criminal background checks may produce inaccurate
results because criminal records may lack “unique” information or because of
“misspellings, clerical errors or intentionally inaccurate identification information
provided by search subjects who wish to avoid discovery of their prior criminal
activities.” 40
Employers performing background checks to screen applicants or employees may attempt
to search these governmental sources themselves or conduct a simple Internet search, but they
often rely on third-party background screening businesses. 41 Businesses that sell criminal
history information to employers are “consumer reporting agencies” (CRAs) 42 if they provide the
information in “consumer reports” 43 under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq. (FCRA). Under FCRA, a CRA generally may not report records of arrests that did not result
in entry of a judgment of conviction, where the arrests occurred more than seven years ago. 44

5

0008

However, they may report convictions indefinitely. 45
CRAs often maintain their own proprietary databases that compile information from
various sources, such as those described above, depending on the extent to which the business
has purchased or otherwise obtained access to data. 46 Such databases vary with respect to the
geographic area covered, the type of information included (e.g., information about arrests,
convictions, prison terms, or specialized information for a subset of employers such as
information about workplace theft or shoplifting cases for retail employers 47), the sources of
information used (e.g., county databases, law enforcement agency records, sex offender
registries), and the frequency with which they are updated. They also may be missing certain
types of disposition information, such as updated convictions, sealing or expungement orders, or
orders for entry into a diversion program. 48
B.

Employers’ Use of Criminal History Information

In one survey, a total of 92% of responding employers stated that they subjected all or
some of their job candidates to criminal background checks. 49 Employers have reported that
their use of criminal history information is related to ongoing efforts to combat theft and fraud,50
as well as heightened concerns about workplace violence 51 and potential liability for negligent
hiring. 52 Employers also cite federal laws as well as state and local laws 53 as reasons for using
criminal background checks.
C.

The EEOC’s Interest in Employers’ Use of Criminal Records in Employment
Screening

The EEOC enforces Title VII, which prohibits employment discrimination based on race,
color, religion, sex, or national origin. Having a criminal record is not listed as a protected basis
in Title VII. Therefore, whether a covered employer’s reliance on a criminal record to deny
employment violates Title VII depends on whether it is part of a claim of employment
discrimination based on race, color, religion, sex, or national origin. Title VII liability for
employment discrimination is determined using two analytic frameworks: “disparate treatment”
and “disparate impact.” Disparate treatment is discussed in Section IV and disparate impact is
discussed in Section V.
IV.

Disparate Treatment Discrimination and Criminal Records

A covered employer is liable for violating Title VII when the plaintiff demonstrates that it
treated him differently because of his race, national origin, or another protected basis. 54 For
example, there is Title VII disparate treatment liability where the evidence shows that a covered
employer rejected an African American applicant based on his criminal record but hired a
similarly situated White applicant with a comparable criminal record. 55
Example 1: Disparate Treatment Based on Race. John, who is White,
and Robert, who is African American, are both recent graduates of State
University. They have similar educational backgrounds, skills, and work
experience. They each pled guilty to charges of possessing and

6

0009

distributing marijuana as high school students, and neither of them had
any subsequent contact with the criminal justice system.
After college, they both apply for employment with Office Jobs, Inc.,
which, after short intake interviews, obtains their consent to conduct a
background check. Based on the outcome of the background check, which
reveals their drug convictions, an Office Jobs, Inc., representative decides
not to refer Robert for a follow-up interview. The representative remarked
to a co-worker that Office Jobs, Inc., cannot afford to refer “these drug
dealer types” to client companies. However, the same representative
refers John for an interview, asserting that John’s youth at the time of the
conviction and his subsequent lack of contact with the criminal justice
system make the conviction unimportant. Office Jobs, Inc., has treated
John and Robert differently based on race, in violation of Title VII.
Title VII prohibits “not only decisions driven by racial [or ethnic] animosity, but also
decisions infected by stereotyped thinking . . . .” 56 Thus, an employer’s decision to reject a job
applicant based on racial or ethnic stereotypes about criminality—rather than qualifications and
suitability for the position—is unlawful disparate treatment that violates Title VII. 57
Example 2: Disparate Treatment Based on National Origin. Tad, who
is White, and Nelson, who is Latino, are both recent high school graduates
with grade point averages above 4.0 and college plans. While Nelson has
successfully worked full-time for a landscaping company during the
summers, Tad only held occasional lawn-mowing and camp-counselor
jobs. In an interview for a research job with Meaningful and Paid
Internships, Inc. (MPII), Tad discloses that he pled guilty to a felony at
age 16 for accessing his school’s computer system over the course of
several months without authorization and changing his classmates’ grades.
Nelson, in an interview with MPII, emphasizes his successful prior work
experience, from which he has good references, but also discloses that, at
age 16, he pled guilty to breaking and entering into his high school as part
of a class prank that caused little damage to school property. Neither Tad
nor Nelson had subsequent contact with the criminal justice system.
The hiring manager at MPII invites Tad for a second interview, despite his
record of criminal conduct. However, the same hiring manager sends
Nelson a rejection notice, saying to a colleague that Nelson is only
qualified to do manual labor and, moreover, that he has a criminal record.
In light of the evidence showing that Nelson’s and Tad’s educational
backgrounds are similar, that Nelson’s work experience is more extensive,
and that Tad’s criminal conduct is more indicative of untrustworthiness,
MPII has failed to state a legitimate, nondiscriminatory reason for
rejecting Nelson. If Nelson filed a Title VII charge alleging disparate
treatment based on national origin and the EEOC’s investigation

7

0010

confirmed these facts, the EEOC would find reasonable cause to believe
that discrimination occurred.
There are several kinds of evidence that may be used to establish that race, national
origin, or other protected characteristics motivated an employer’s use of criminal
records in a selection decision, including, but not limited to:
•

•

Inconsistencies in the hiring process. Evidence that the employer requested
criminal history information more often for individuals with certain racial or
ethnic backgrounds, or gave Whites but not racial minorities the opportunity to
explain their criminal history, would support a showing of disparate treatment.

•

Similarly situated comparators (individuals who are similar to the charging party
in relevant respects, except for membership in the protected group). Comparators
may include people in similar positions, former employees, and people chosen for
a position over the charging party. The fact that a charging party was treated
differently than individuals who are not in the charging party’s protected group
by, for example, being subjected to more or different criminal background checks
or to different standards for evaluating criminal history, would be evidence of
disparate treatment.

•

Employment testing. Matched-pair testing may reveal that candidates are being
treated differently because of a protected status. 58

•

V.

Biased statements. Comments by the employer or decisionmaker that are
derogatory with respect to the charging party’s protected group, or that express
group-related stereotypes about criminality, might be evidence that such biases
affected the evaluation of the applicant’s or employee’s criminal record.

Statistical evidence. Statistical analysis derived from an examination of the
employer’s applicant data, workforce data, and/or third party criminal background
history data may help to determine if the employer counts criminal history
information more heavily against members of a protected group.
Disparate Impact Discrimination and Criminal Records

A covered employer is liable for violating Title VII when the plaintiff demonstrates that
the employer’s neutral policy or practice has the effect of disproportionately screening out a Title
VII-protected group and the employer fails to demonstrate that the policy or practice is job
related for the position in question and consistent with business necessity. 59
In its 1971 Griggs v. Duke Power Company decision, the Supreme Court first recognized
that Title VII permits disparate impact claims. 60 The Griggs Court explained that “[Title VII]
proscribes . . . practices that are fair in form, but discriminatory in operation. The touchstone is
business necessity. If an employment practice which operates to exclude [African Americans]
cannot be shown to be related to job performance, the practice is prohibited.” 61 In 1991,

8

0011

Congress amended Title VII to codify this analysis of discrimination and its burdens of proof.62
Title VII, as amended, states:
An unlawful employment practice based on disparate impact is established . . . if a
complaining party demonstrates that an employer uses a particular employment
practice that causes a disparate impact on the basis of race, color, religion, sex, or
national origin and the respondent fails to demonstrate that the challenged
practice is job related for the position in question and consistent with business
necessity. . . . 63
With respect to criminal records, there is Title VII disparate impact liability where the
evidence shows that a covered employer’s criminal record screening policy or practice
disproportionately screens out a Title VII-protected group and the employer does not
demonstrate that the policy or practice is job related for the positions in question and consistent
with business necessity.
A.

Determining Disparate Impact of Policies or Practices that Screen
Individuals Based on Records of Criminal Conduct
1.

Identifying the Policy or Practice

The first step in disparate impact analysis is to identify the particular policy or practice
that causes the unlawful disparate impact. For criminal conduct exclusions, relevant information
includes the text of the policy or practice, associated documentation, and information about how
the policy or practice was actually implemented. More specifically, such information also
includes which offenses or classes of offenses were reported to the employer (e.g., all felonies,
all drug offenses); whether convictions (including sealed and/or expunged convictions), arrests,
charges, or other criminal incidents were reported; how far back in time the reports reached (e.g.,
the last five, ten, or twenty years); and the jobs for which the criminal background screening was
conducted. 64 Training or guidance documents used by the employer also are relevant, because
they may specify which types of criminal history information to gather for particular jobs, how to
gather the data, and how to evaluate the information after it is obtained.
2.

Determining Disparate Impact

Nationally, African Americans and Hispanics are arrested in numbers disproportionate to
their representation in the general population. In 2010, 28% of all arrests were of African
Americans, 65 even though African Americans only comprised approximately 14% of the general
population. 66 In 2008, Hispanics were arrested for federal drug charges at a rate of
approximately three times their proportion of the general population. 67 Moreover, African
Americans and Hispanics were more likely than Whites to be arrested, convicted, or sentenced
for drug offenses even though their rate of drug use is similar to the rate of drug use for Whites. 68
African Americans and Hispanics also are incarcerated at rates disproportionate to their
numbers in the general population. Based on national incarceration data, the U.S. Department of
Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.)

9

0012

is expected to go to prison at some point during his lifetime, assuming that current incarceration
rates remain unchanged. 69 This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. 70 For African
American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). 71 Based on a stateby-state examination of incarceration rates in 2005, African Americans were incarcerated at a
rate 5.6 times higher than Whites, 72 and 7 states had a Black-to-White ratio of incarceration that
was 10 to1. 73 In 2010, Black men had an imprisonment rate that was nearly 7 times higher than
White men and almost 3 times higher than Hispanic men. 74
National data, such as that cited above, supports a finding that criminal record exclusions
have a disparate impact based on race and national origin. The national data provides a basis for
the Commission to further investigate such Title VII disparate impact charges. During an EEOC
investigation, the employer also has an opportunity to show, with relevant evidence, that its
employment policy or practice does not cause a disparate impact on the protected group(s). For
example, an employer may present regional or local data showing that African American and/or
Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s
particular geographic area. An employer also may use its own applicant data to demonstrate that
its policy or practice did not cause a disparate impact. The Commission will assess relevant
evidence when making a determination of disparate impact, including applicant flow information
maintained pursuant to the Uniform Guidelines on Employee Selection Procedures, 75 workforce
data, criminal history background check data, demographic availability statistics,
incarceration/conviction data, and/or relevant labor market statistics. 76
An employer’s evidence of a racially balanced workforce will not be enough to disprove
disparate impact. In Connecticut v. Teal, the Supreme Court held that a “bottom line” racial
balance in the workforce does not preclude employees from establishing a prima facie case of
disparate impact; nor does it provide employers with a defense. 77 The issue is whether the policy
or practice deprives a disproportionate number of Title VII-protected individuals of employment
opportunities. 78
Finally, in determining disparate impact, the Commission will assess the probative value
of an employer’s applicant data. As the Supreme Court stated in Dothard v. Rawlinson, an
employer’s “application process might itself not adequately reflect the actual potential applicant
pool since otherwise qualified people might be discouraged from applying” because of an
alleged discriminatory policy or practice. 79 Therefore, the Commission will closely consider
whether an employer has a reputation in the community for excluding individuals with criminal
records. Relevant evidence may come from ex-offender employment programs, individual
testimony, employer statements, evidence of employer recruitment practices, or publicly posted
notices, among other sources. 80 The Commission will determine the persuasiveness of such
evidence on a case-by-case basis.
B.

Job Related For the Position in Question and Consistent with Business
Necessity
1.

Generally

After the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of

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0013

production and persuasion to the employer to “demonstrate that the challenged practice is job
related for the position in question and consistent with business necessity.” 81 In the legislative
history of the 1991 Civil Rights Act, Congress referred to Griggs and its progeny such as
Albemarle Paper Company v. Moody 82 and Dothard 83 to explain how this standard should be
construed. 84 The Griggs Court stated that the employer’s burden was to show that the policy or
practice is one that “bear[s] a demonstrable relationship to successful performance of the jobs for
which it was used” and “measures the person for the job and not the person in the abstract.” 85 In
both Albemarle 86 and Dothard, 87 the Court emphasized the factual nature of the business
necessity inquiry. The Court further stated in Dothard that the terms of the exclusionary policy
must “be shown to be necessary to safe and efficient job performance.” 88
In a case involving a criminal record exclusion, the Eighth Circuit in its 1975 Green v.
Missouri Pacific Railroad decision, held that it was discriminatory under Title VII for an
employer to “follow[] the policy of disqualifying for employment any applicant with a
conviction for any crime other than a minor traffic offense.” 89 The Eighth Circuit identified
three factors (the “Green factors”) that were relevant to assessing whether an exclusion is job
related for the position in question and consistent with business necessity:
•
•
•

The nature and gravity of the offense or conduct; 90
The time that has passed since the offense or conduct and/or
completion of the sentence; 91 and
The nature of the job held or sought. 92

In 2007, the Third Circuit in El v. Southeastern Pennsylvania Transportation Authority93
developed the statutory analysis in greater depth. Douglas El challenged SEPTA’s policy of
excluding everyone ever convicted of a violent crime from the job of paratransit driver. 94 El, a
55 year-old African American paratransit driver-trainee, was terminated from employment when
SEPTA learned of his conviction for second-degree murder 40 years earlier; the conviction
involved a gang fight when he was 15 years old and was his only disqualifying offense under
SEPTA’s policy. 95 The Third Circuit expressed “reservations” about a policy such as SEPTA’s
(exclusion for all violent crimes, no matter how long ago they were committed) “in the
abstract.” 96
Applying Supreme Court precedent, the El court observed that some level of risk is
inevitable in all hiring, and that, “[i]n a broad sense, hiring policies . . . ultimately concern the
management of risk.” 97 Recognizing that assessing such risk is at the heart of criminal record
exclusions, the Third Circuit concluded that 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.” 98
The Third Circuit affirmed summary judgment for SEPTA, but stated that the outcome of
the case might have been different if Mr. El had, “for example, hired an expert who testified that
there is a time at which a former criminal is no longer any more likely to recidivate than the
average person, . . . [so] there would be a factual question for the jury to resolve.” 99 The Third
Circuit reasoned, however, that the recidivism evidence presented by SEPTA’s experts, in

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conjunction with the nature of the position at issue—paratransit driver-trainee with unsupervised
access to vulnerable adults—required the employer to exercise the utmost care. 100
In the subsections below, the Commission discusses considerations that are relevant to
assessing whether criminal record exclusion policies or practices are job related and consistent
with business necessity. First, we emphasize that arrests and convictions are treated differently.
2.

Arrests

The fact of an arrest does not establish that criminal conduct has occurred. 101 Arrests are
not proof of criminal conduct. Many arrests do not result in criminal charges, or the charges are
dismissed. 102 Even if an individual is charged and subsequently prosecuted, he is presumed
innocent unless proven guilty. 103
An arrest, however, may in some circumstances trigger an inquiry into whether the
conduct underlying the arrest justifies an adverse employment action. Title VII calls for a factbased analysis to determine if an exclusionary policy or practice is job related and consistent
with business necessity. Therefore, an exclusion based on an arrest, in itself, is not job related
and consistent with business necessity.
Another reason for employers not to rely on arrest records is that they may not report the
final disposition of the arrest (e.g., not prosecuted, convicted, or acquitted). As documented in
Section III.A., supra, the DOJ/BJS reported that many arrest records in the FBI’s III database
and state criminal record repositories are not associated with final dispositions. 104 Arrest records
also may include inaccuracies or may continue to be reported even if expunged or sealed. 105
Example 3: Arrest Record Is Not Grounds for Exclusion. Mervin and
Karen, a middle-aged African American couple, are driving to church in a
predominantly white town. An officer stops them and interrogates them
about their destination. When Mervin becomes annoyed and comments
that his offense is simply “driving while Black,” the officer arrests him for
disorderly conduct. The prosecutor decides not to file charges against
Mervin, but the arrest remains in the police department’s database and is
reported in a background check when Mervin applies with his employer of
fifteen years for a promotion to an executive position. The employer’s
practice is to deny such promotions to individuals with arrest records, even
without a conviction, because it views an arrest record as an indicator of
untrustworthiness and irresponsibility. If Mervin filed a Title VII charge
based on these facts, and disparate impact based on race were established,
the EEOC would find reasonable cause to believe that his employer
violated Title VII.
Although an arrest record standing alone may not be used to deny an employment
opportunity, an employer may make an employment decision based on the conduct underlying
the arrest if the conduct makes the individual unfit for the position in question. The conduct, not
the arrest, is relevant for employment purposes.

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Example 4: Employer's Inquiry into Conduct Underlying Arrest.
Andrew, a Latino man, worked as an assistant principal in Elementary
School for several years. After several ten and eleven-year-old girls
attending the school accused him of touching them inappropriately on the
chest, Andrew was arrested and charged with several counts of
endangering the welfare of children and sexual abuse. Elementary School
has a policy that requires suspension or termination of any employee who
the school believes engaged in conduct that impacts the health or safety of
the students. After learning of the accusations, the school immediately
places Andrew on unpaid administrative leave pending an investigation.
In the course of its investigation, the school provides Andrew a chance to
explain the events and circumstances that led to his arrest. Andrew denies
the allegations, saying that he may have brushed up against the girls in the
crowded hallways or lunchroom, but that he doesn’t really remember the
incidents and does not have regular contact with any of the girls. The
school also talks with the girls, and several of them recount touching in
crowded situations. The school does not find Andrew’s explanation
credible. Based on Andrew’s conduct, the school terminates his
employment pursuant to its policy.
Andrew challenges the policy as discriminatory under Title VII. He
asserts that it has a disparate impact based on national origin and that his
employer may not suspend or terminate him based solely on an arrest
without a conviction because he is innocent until proven guilty. After
confirming that an arrest policy would have a disparate impact based on
national origin, the EEOC concludes that no discrimination occurred. The
school’s policy is linked to conduct that is relevant to the particular jobs at
issue, and the exclusion is made based on descriptions of the underlying
conduct, not the fact of the arrest. The Commission finds no reasonable
cause to believe Title VII was violated.
3.

Convictions

By contrast, 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. 106 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. For example, a database may
continue to report a conviction that was later expunged, or may continue to report as a felony an
offense that was subsequently downgraded to a misdemeanor. 107
Some states require employers to wait until late in the selection process to ask about
convictions. 108 The policy rationale is that an employer is more likely to objectively assess the
relevance of an applicant’s conviction if it becomes known when the employer is already
knowledgeable about the applicant’s qualifications and experience. 109 As a best practice, and
consistent with applicable laws, 110 the Commission recommends that employers not ask about

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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 for the position in question and
consistent with business necessity.
4.

Determining Whether a Criminal Conduct Exclusion Is Job Related
and Consistent with Business Necessity

To establish that a criminal conduct exclusion that has a disparate impact is job related
and consistent with business necessity under Title VII, the employer needs to show that the
policy operates to effectively link specific criminal conduct, and its dangers, with the risks
inherent in the duties of a particular position.
Two circumstances in which the Commission believes employers will consistently meet
the “job related and consistent with business necessity” defense are as follows:
o The employer validates the criminal conduct screen for the position in question per
the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines)
standards (if data about criminal conduct as related to subsequent work performance
is available and such validation is possible); 111 or
o The employer develops a targeted screen considering at least the nature of the crime,
the time elapsed, and the nature of the job (the three Green factors), and then provides
an opportunity for an individualized assessment for people excluded by the screen to
determine whether the policy as applied is job related and consistent with business
necessity.
The individualized assessment would consist of notice to the individual that he has been
screened out because of a criminal conviction; an opportunity for the individual to demonstrate
that the exclusion should not be applied due to his particular circumstances; and consideration by
the employer as to whether the additional information provided by the individual warrants an
exception to the exclusion and shows that the policy as applied is not job related and consistent
with business necessity. See Section V.B.9, infra (examples of relevant considerations in
individualized assessments).
Depending on the facts and circumstances, an employer may be able to justify a targeted
criminal records screen solely under the Green factors. Such a screen would need to be narrowly
tailored to identify criminal conduct with a demonstrably tight nexus to the position in question.
Title VII thus does not necessarily require individualized assessment in all circumstances.
However, the use of individualized assessments can help employers avoid Title VII liability by
allowing them to consider more complete information on individual applicants or employees, as
part of a policy that is job related and consistent with business necessity.
5.

Validation

The Uniform Guidelines describe three different approaches to validating employment
screens. 112 However, they recognize that “[t]here are circumstances in which a user cannot or

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need not utilize” formal validation techniques and that in such circumstances an employer
“should utilize selection procedures which are as job related as possible and which will minimize
or eliminate adverse impact as set forth [in the following subsections].” 113 Although there may
be social science studies that assess whether convictions are linked to future behaviors, traits, or
conduct with workplace ramifications, 114 and thereby provide a framework for validating some
employment exclusions, such studies are rare at the time of this drafting.
6.

Detailed Discussion of the Green Factors and Criminal Conduct
Screens

Absent a validation study that meets the Uniform Guidelines’ standards, the Green
factors provide the starting point for analyzing how specific criminal conduct may be linked to
particular positions. The three Green factors are:
•
•
•

The nature and gravity of the offense or conduct;
The time that has passed since the offense, conduct and/or completion of the
sentence; and
The nature of the job held or sought.
a.

The Nature and Gravity of the Offense or Conduct

Careful consideration of the nature and gravity of the offense or conduct is the first step
in determining whether a specific crime may be relevant to concerns about risks in a particular
position. The nature of the offense or conduct may be assessed with reference to the harm caused
by the crime (e.g., theft causes property loss). The legal elements of a crime also may be
instructive. For example, a conviction for felony theft may involve deception, threat, or
intimidation.115 With respect to the gravity of the crime, offenses identified as misdemeanors
may be less severe than those identified as felonies.
b.

The Time that Has Passed Since the Offense, Conduct and/or
Completion of the Sentence

Employer policies typically specify the duration of a criminal conduct exclusion. While
the Green court did not endorse a specific timeframe for criminal conduct exclusions, it did
acknowledge that permanent exclusions from all employment based on any and all offenses were
not consistent with the business necessity standard. 116 Subsequently, in El, the court noted that
the plaintiff might have survived summary judgment if he had presented evidence that “there is a
time at which a former criminal is no longer any more likely to recidivate than the average
person . . . .” 117 Thus, the court recognized that the amount of time that had passed since the
plaintiff’s criminal conduct occurred was probative of the risk he posed in the position in
question.
Whether the duration of an exclusion will be sufficiently tailored to satisfy the business
necessity standard will depend on the particular facts and circumstances of each case. Relevant
and available information to make this assessment includes, for example, studies demonstrating
how much the risk of recidivism declines over a specified time. 118

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c.

The Nature of the Job Held or Sought

Finally, it is important to identify the particular job(s) subject to the exclusion. While a
factual inquiry may begin with identifying the job title, it also encompasses the nature of the
job’s duties (e.g., data entry, lifting boxes), identification of the job’s essential functions, the
circumstances under which the job is performed (e.g., the level of supervision, oversight, and
interaction with co-workers or vulnerable individuals), and the environment in which the job’s
duties are performed (e.g., out of doors, in a warehouse, in a private home). Linking the criminal
conduct to the essential functions of the position in question may assist an employer in
demonstrating that its policy or practice is job related and consistent with business necessity
because it “bear[s] a demonstrable relationship to successful performance of the jobs for which it
was used.” 119
7.

Examples of Criminal Conduct Exclusions that Do Not
Consider the Green Factors

A policy or practice requiring an automatic, across-the-board exclusion from all
employment opportunities because of any criminal conduct is inconsistent with the Green factors
because it does not focus on the dangers of particular crimes and the risks in particular positions.
As the court recognized in Green, “[w]e cannot conceive of any business necessity that would
automatically place every individual convicted of any offense, except a minor traffic offense, in
the permanent ranks of the unemployed.” 120
Example 5: Exclusion Is Not Job Related and Consistent with
Business Necessity. The National Equipment Rental Company uses the
Internet to accept job applications for all positions. All applicants must
answer certain questions before they are permitted to submit their online
application, including “have you ever been convicted of a crime?” If the
applicant answers “yes,” the online application process automatically
terminates, and the applicant sees a screen that simply says “Thank you
for your interest. We cannot continue to process your application at this
time.”
The Company does not have a record of the reasons why it adopted this
exclusion, and it does not have information to show that convictions for all
offenses render all applicants unacceptable risks in all of its jobs, which
range from warehouse work, to delivery, to management positions. If a
Title VII charge were filed based on these facts, and there was a disparate
impact on a Title VII-protected basis, the EEOC would find reasonable
cause to believe that the blanket exclusion was not job related and
consistent with business necessity because the risks associated with all
convictions are not pertinent to all of the Company’s jobs.
Example 6: Exclusion Is Not Job Related and Consistent with
Business Necessity. Leo, an African American man, has worked

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successfully at PR Agency as an account executive for three years. After a
change of ownership, the new owners adopt a policy under which it will
not employ anyone with a conviction. The policy does not allow for any
individualized assessment before exclusion. The new owners, who are
highly respected in the industry, pride themselves on employing only the
“best of the best” for every position. The owners assert that a quality
workforce is a key driver of profitability.
Twenty years earlier, as a teenager, Leo pled guilty to a misdemeanor
assault charge. During the intervening twenty years, Leo graduated from
college and worked successfully in advertising and public relations
without further contact with the criminal justice system. At PR Agency,
all of Leo’s supervisors assessed him as a talented, reliable, and
trustworthy employee, and he has never posed a risk to people or property
at work. However, once the new ownership of PR Agency learns about
Leo’s conviction record through a background check, it terminates his
employment. It refuses to reconsider its decision despite Leo’s positive
employment history at PR Agency.
Leo files a Title VII charge alleging that PR Agency’s conviction policy
has a disparate impact based on race and is not job related for the position
in question and consistent with business necessity. After confirming
disparate impact, the EEOC considers PR Agency’s defense that it
employs only the “best of the best” for every position, and that this
necessitates excluding everyone with a conviction. PR Agency does not
show that all convictions are indicative of risk or danger in all its jobs for
all time, under the Green factors. Nor does PR Agency provide any
factual support for its assertion that having a conviction is necessarily
indicative of poor work or a lack of professionalism. The EEOC
concludes that there is reasonable cause to believe that the Agency’s
policy is not job related for the position in question and consistent with
business necessity. 121
8.

Targeted Exclusions that Are Guided by the Green Factors

An employer policy or practice of excluding individuals from particular positions for
specified criminal conduct within a defined time period, as guided by the Green factors, is a
targeted exclusion. Targeted exclusions are tailored to the rationale for their adoption, in light of
the particular criminal conduct and jobs involved, taking into consideration fact-based evidence,
legal requirements, and/or relevant and available studies.

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As discussed above in Section V.B.4, depending on the facts and circumstances, an
employer may be able to justify a targeted criminal records screen solely under the Green
factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a
demonstrably tight nexus to the position in question. Title VII thus does not necessarily require
individualized assessment in all circumstances. However, the use of individualized assessments
can help employers avoid Title VII liability by allowing them to consider more complete
information on individual applicants or employees, as part of a policy that is job related and
consistent with business necessity.
9.

Individualized Assessment

Individualized assessment generally means that an employer informs the individual that
he may be excluded because of past criminal conduct; provides an opportunity to the individual
to demonstrate that the exclusion does not properly apply to him; and considers whether the
individual’s additional information shows that the policy as applied is not job related and
consistent with business necessity.
The individual’s showing may include information that he was not correctly identified in
the criminal record, or that the record is otherwise inaccurate. Other relevant individualized
evidence includes, for example:
•
•
•
•
•
•
•
•

The facts or circumstances surrounding the offense or conduct;
The number of offenses for which the individual was convicted;
Older age at the time of conviction, or release from prison; 122
Evidence that the individual performed the same type of work, post conviction,
with the same or a different employer, with no known incidents of criminal
conduct;
The length and consistency of employment history before and after the
offense or conduct; 123
Rehabilitation efforts, e.g., education/training; 124
Employment or character references and any other information regarding fitness
for the particular position; 125 and
Whether the individual is bonded under a federal, state, or local bonding
program. 126

If the individual does not respond to the employer’s attempt to gather additional
information about his background, the employer may make its employment decision without the
information.
Example 7: Targeted Screen with Individualized Assessment Is Job
Related and Consistent with Business Necessity. County Community
Center rents meeting rooms to civic organizations and small businesses,
party rooms to families and social groups, and athletic facilities to local
recreational sports leagues. The County has a targeted rule prohibiting
anyone with a conviction for theft crimes (e.g., burglary, robbery, larceny,
identity theft) from working in a position with access to personal financial

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information for at least four years after the conviction or release from
incarceration. This rule was adopted by the County’s Human Resources
Department based on data from the County Corrections Department,
national criminal data, and recent recidivism research for theft crimes.
The Community Center also offers an opportunity for individuals
identified for exclusion to provide information showing that the exclusion
should not be applied to them.
Isaac, who is Hispanic, applies to the Community Center for a full-time
position as an administrative assistant, which involves accepting credit
card payments for room rentals, in addition to having unsupervised access
to the personal belongings of people using the facilities. After conducting
a background check, the County learns that Isaac pled guilty eighteen
months earlier, at age twenty, to credit card fraud, and that he did not
serve time in prison. Isaac confirms these facts, provides a reference from
the restaurant where he now works on Saturday nights, and asks the
County for a “second chance” to show that he is trustworthy. The County
tells Isaac that it is still rejecting his employment application because his
criminal conduct occurred eighteen months ago and is directly pertinent to
the job in question. The information he provided did nothing to dispel the
County’s concerns.
Isaac challenges this rejection under Title VII, alleging that the policy has
a disparate impact on Hispanics and is not job related and consistent with
business necessity. After confirming disparate impact, the EEOC finds
that this screen was carefully tailored to assess unacceptable risk in
relevant positions, for a limited time period, consistent with the evidence,
and that the policy avoided overbroad exclusions by allowing individuals
an opportunity to explain special circumstances regarding their criminal
conduct. Thus, even though the policy has a disparate impact on
Hispanics, the EEOC does not find reasonable cause to believe that
discrimination occurred because the policy is job related and consistent
with business necessity. 127
Example 8: Targeted Exclusion Without Individualized Assessment Is
Not Job Related and Consistent with Business Necessity. “Shred 4
You” employs over 100 people to pick up discarded files and sensitive
materials from offices, transport the materials to a secure facility, and
shred and recycle them. The owner of “Shred 4 You” sells the company
to a competitor, known as “We Shred.” Employees of “Shred 4 You”
must reapply for employment with “We Shred” and undergo a background
check. “We Shred” has a targeted criminal conduct exclusion policy that
prohibits the employment of anyone who has been convicted of any crime
related to theft or fraud in the past five years, and the policy does not
provide for any individualized consideration. The company explains that
its clients entrust it with handling sensitive and confidential information

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and materials; therefore, it cannot risk employing people who pose an
above-average risk of stealing information.
Jamie, who is African American, worked successfully for “Shred 4 You”
for five years before the company changed ownership. Jamie applies for
his old job, and “We Shred” reviews Jamie’s performance appraisals,
which include high marks for his reliability, trustworthiness, and honesty.
However, when “We Shred” does a background check, it finds that Jamie
pled guilty to misdemeanor insurance fraud five years ago, because he
exaggerated the costs of several home repairs after a winter storm. “We
Shred” management informs Jamie that his guilty plea is evidence of
criminal conduct and that his employment will be terminated. Jamie asks
management to consider his reliable and honest performance in the same
job at “Shred 4 You,” but “We Shred” refuses to do so. The employer’s
conclusion that Jamie’s guilty plea demonstrates that he poses an elevated
risk of dishonesty is not factually based given Jamie’s history of
trustworthiness in the same job. After confirming disparate impact based
on race (African American), the EEOC finds reasonable cause to believe
that Title VII was violated because the targeted exclusion was not job
related and consistent with business necessity based on these facts.
C.

Less Discriminatory Alternatives

If an employer successfully demonstrates that its policy or practice is job related for the
position in question and consistent with business necessity, a Title VII plaintiff may still prevail
by demonstrating that there is a less discriminatory “alternative employment practice” that serves
the employer’s legitimate goals as effectively as the challenged practice but that the employer
refused to adopt. 128
VI.

Positions Subject to Federal Prohibitions or Restrictions on Individuals with
Records of Certain Criminal Conduct

In some industries, employers are subject to federal statutory and/or regulatory
requirements that prohibit individuals with certain criminal records from holding particular
positions or engaging in certain occupations. Compliance with federal laws and/or regulations is
a defense to a charge of discrimination. However, the EEOC will continue to coordinate with
other federal departments and agencies with the goal of maximizing federal regulatory
consistency with respect to the use of criminal history information in employment decisions. 129
A.

Hiring in Certain Industries

Federal laws and regulations govern the employment of individuals with specific
convictions in certain industries or positions in both the private and public sectors. For example,
federal law excludes an individual who was convicted in the previous ten years of specified
crimes from working as a security screener or otherwise having unescorted access to the secure
areas of an airport. 130 There are equivalent requirements for federal law enforcement officers, 131

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child care workers in federal agencies or facilities, 132 bank employees, 133 and port workers, 134
among other positions. 135 Title VII does not preempt these federally imposed restrictions.
However, if an employer decides to impose an exclusion that goes beyond the scope of a
federally imposed restriction, the discretionary aspect of the policy would be subject to Title VII
analysis.
Example 9: Exclusion Is Not Job Related and Consistent with
Business Necessity. Your Bank has a rule prohibiting anyone with
convictions for any type of financial or fraud-related crimes within the last
twenty years from working in positions with access to customer financial
information, even though the federal ban is ten years for individuals who
are convicted of any criminal offense involving dishonesty, breach of
trust, or money laundering from serving in such positions.
Sam, who is Latino, applies to Your Bank to work as a customer service
representative. A background check reveals that Sam was convicted of a
misdemeanor for misrepresenting his income on a loan application fifteen
years earlier. Your Bank therefore rejects Sam, and he files a Title VII
charge with the EEOC, alleging that the Bank’s policy has a disparate
impact based on national origin and is not job related and consistent with
business necessity. Your Bank asserts that its policy does not cause a
disparate impact and that, even if it does, it is job related for the position
in question because customer service representatives have regular access
to financial information and depositors must have “100% confidence” that
their funds are safe. However, Your Bank does not offer evidence
showing that there is an elevated likelihood of committing financial crimes
for someone who has been crime-free for more than ten years. After
establishing that the Bank’s policy has a disparate impact based on
national origin, the EEOC finds that the policy is not job related for the
position in question and consistent with business necessity. The Bank’s
justification for adding ten years to the federally mandated exclusion is
insufficient because it is only a generalized concern about security,
without proof.
B.

Obtaining Occupational Licenses

Title VII also does not preempt federal statutes and regulations that govern eligibility for
occupational licenses and registrations. These restrictions cover diverse sectors of the economy
including the transportation industry, 136 the financial industry, 137 and import/export activities, 138
among others. 139
C.

Waiving or Appealing Federally Imposed Occupational Restrictions

Several federal statutes and regulations provide a mechanism for employers or
individuals to appeal or apply for waivers of federally imposed occupational restrictions. For
example, unless a bank receives prior written consent from the Federal Deposit Insurance

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Corporation (FDIC), an individual convicted of a criminal offense involving dishonesty, breach
of trust, money laundering, or another financially related crime may not work in, own, or control
“an insured depository institution” (e.g., bank) for ten years under the Federal Deposit Insurance
Act. 140 To obtain such FDIC consent, the insured institution must file an application for a waiver
on behalf of the particular individual. 141 Alternatively, if the insured institution does not apply
for the waiver on the individual’s behalf, the individual may file a request directly with the FDIC
for a waiver of the institution filing requirement, demonstrating “substantial good cause” to grant
the waiver. 142 If the FDIC grants the individual’s waiver request, the individual can then file an
application directly with the FDIC for consent to work for the insured institution in question.143
Once the institution, or the individual, submits the application, the FDIC’s criminal record
waiver review process requires consideration of mitigating factors that are consistent with Title
VII, including evidence of rehabilitation, and the nature and circumstances of the crime. 144
Additionally, port workers who are denied the Transportation Workers Identification
Credential (TWIC) based on their conviction record may seek a waiver for certain permanently
disqualifying offenses or interim disqualifying offenses, and also may file an individualized
appeal from the Transportation Security Administration’s initial determination of threat
assessment based on the conviction. 145 The Maritime Transportation Security Act, which
requires all port workers to undergo a criminal background check to obtain a TWIC, 146 provides
that individuals with convictions for offenses such as espionage, treason, murder, and a federal
crime of terrorism are permanently disqualified from obtaining credentials, but those with
convictions for firearms violations and distribution of controlled substances may be temporarily
disqualified. 147 Most offenses related to dishonesty are only temporarily disqualifying. 148
Example 10: Consideration of Federally Imposed Occupational
Restrictions. John Doe applies for a position as a truck driver for
Truckers USA. John’s duties will involve transporting cargo to, from, and
around ports, and Truckers USA requires all of its port truck drivers to
have a TWIC. The Transportation Security Administration (TSA)
conducts a criminal background check and may deny the credential to
applicants who have permanently disqualifying criminal offenses in their
background as defined by federal law. After conducting the background
check for John Doe, TSA discovers that he was convicted nine years
earlier for conspiracy to use weapons of mass destruction. TSA denies
John a security card because this is a permanently disqualifying criminal
offense under federal law. 149 John, who points out that he was a minor at
the time of the conviction, requests a waiver by TSA because he had
limited involvement and no direct knowledge of the underlying crime at
the time of the offense. John explains that he helped a friend transport
some chemical materials that the friend later tried to use to damage
government property. TSA refuses to grant John’s waiver request because
a conviction for conspiracy to use weapons of mass destruction is not
subject to the TSA’s waiver procedures. 150 Based on this denial, Truckers
USA rejects John’s application for the port truck driver position. Title VII
does not override Truckers USA’s policy because the policy is consistent
with another federal law.

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While Title VII does not mandate that an employer seek such waivers, where an
employer does seek waivers it must do so in a nondiscriminatory manner.
D.

Security Clearances

The existence of a criminal record may result in the denial of a federal security clearance,
which is a prerequisite for a variety of positions with the federal government and federal
government contractors. 151 A federal security clearance is used to ensure employees’
trustworthiness, reliability, and loyalty before providing them with access to sensitive national
security information. 152 Under Title VII’s national security exception, it is not unlawful for an
employer to “fail or refuse to hire and employ” an individual because “such individual has not
fulfilled or has ceased to fulfill” the federal security requirements. 153 This exception focuses on
whether the position in question is, in fact, subject to national security requirements that are
imposed by federal statute or Executive Order, and whether the adverse employment action
actually resulted from the denial or revocation of a security clearance. 154 Procedural
requirements related to security clearances must be followed without regard to an individual’s
race, color, religion, sex, or national origin. 155
E.

Working for the Federal Government

Title VII provides that, with limited coverage exceptions, “[a]ll personnel actions
affecting employees or applicants for employment . . . shall be made free from any
discrimination based on race, color, religion, sex, or national origin.” 156 The principles discussed
above in this Guidance apply in the federal employment context. In most circumstances,
individuals with criminal records are not automatically barred from working for the federal
government. 157 However, the federal government imposes criminal record restrictions on its
workforce through “suitability” requirements for certain positions. 158 The federal government’s
Office of Personnel Management (OPM) defines suitability as “determinations based on a
person's character or conduct that may have an impact on the integrity or efficiency of the
service.” 159 Under OPM's rules, agencies may bar individuals from federal employment for up
to three years if they are found unsuitable based on criminal or dishonest conduct, among other
factors. 160 OPM gives federal agencies the discretion to consider relevant mitigating criteria
when deciding whether an individual is suitable for a federal position. 161 These mitigating
criteria, which are consistent with the three Green factors and also provide an individualized
assessment of the applicant’s background, allow consideration of: (1) the nature of the position
for which the person is applying or in which the person is employed; (2) the nature and
seriousness of the conduct; (3) the circumstances surrounding the conduct; (4) the recency of the
conduct; (5) the age of the person involved at the time of the conduct; (6) contributing societal
conditions; and (7) the absence or presence of rehabilitation or efforts toward rehabilitation. 162
In general, OPM requires federal agencies and departments to consider hiring an individual with
a criminal record if he is the best candidate for the position in question and can comply with
relevant job requirements. 163 The EEOC continues to coordinate with OPM to achieve employer
best practices in the federal sector. 164

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VII.

Positions Subject to State and Local Prohibitions or Restrictions on Individuals with
Records of Certain Criminal Conduct

States and local jurisdictions also have laws and/or regulations that restrict or prohibit the
employment of individuals with records of certain criminal conduct. 165 Unlike federal laws or
regulations, however, state and local laws or regulations are preempted by Title VII if they
“purport[] to require or permit the doing of any act which would be an unlawful employment
practice” under Title VII. 166 Therefore, if an employer’s exclusionary policy or practice is not
job related and consistent with business necessity, the fact that it was adopted to comply with a
state or local law or regulation does not shield the employer from Title VII liability. 167
Example 11: State Law Exclusion Is Job Related and Consistent with
Business Necessity. Elijah, who is African American, applies for a
position as an office assistant at Pre-School, which is in a state that
imposes criminal record restrictions on school employees. Pre-School,
which employs twenty-five full- and part-time employees, uses all of its
workers to help with the children. Pre-School performs a background
check and learns that Elijah pled guilty to charges of indecent exposure
two years ago. After being rejected for the position because of his
conviction, Elijah files a Title VII disparate impact charge based on race
to challenge Pre-School’s policy. The EEOC conducts an investigation
and finds that the policy has a disparate impact and that the exclusion is
job related for the position in question and consistent with business
necessity because it addresses serious safety risks of employment in a
position involving regular contact with children. As a result, the EEOC
would not find reasonable cause to believe that discrimination occurred.
Example 12: State Law Exclusion Is Not Consistent with Title VII.
County Y enforces a law that prohibits all individuals with a criminal
conviction from working for it. Chris, an African American man, was
convicted of felony welfare fraud fifteen years ago, and has not had
subsequent contact with the criminal justice system. Chris applies to
County Y for a job as an animal control officer trainee, a position that
involves learning how to respond to citizen complaints and handle
animals. The County rejects Chris’s application as soon as it learns that he
has a felony conviction. Chris files a Title VII charge, and the EEOC
investigates, finding disparate impact based on race and also that the
exclusionary policy is not job related and consistent with business
necessity. The County cannot justify rejecting everyone with any
conviction from all jobs. Based on these facts, County Y’s law “purports
to require or permit the doing of an[] act which would be an unlawful
employment practice” under Title VII.

24

0027

VIII. Employer Best Practices
The following are examples of best practices for employers who are considering criminal
record information when making employment decisions.
General
•

Eliminate policies or practices that exclude people from employment based on any criminal
record.

•

Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on
employment discrimination.

Developing a Policy
•

Develop a narrowly tailored written policy and procedure for screening applicants and
employees for criminal conduct.
•

Identify essential job requirements and the actual circumstances under which the jobs are
performed.

•

Determine the specific offenses that may demonstrate unfitness for performing such jobs.
o Identify the criminal offenses based on all available evidence.

•

Determine the duration of exclusions for criminal conduct based on all available
evidence.
o Include an individualized assessment.

•
•
•

Record the justification for the policy and procedures.
Note and keep a record of consultations and research considered in crafting the policy
and procedures.

Train managers, hiring officials, and decisionmakers on how to implement the policy and
procedures consistent with Title VII.

Questions about Criminal Records
•

When asking questions about criminal records, limit inquiries to records for which exclusion
would be job related for the position in question and consistent with business necessity.

25

0028

Confidentiality
•

Keep information about applicants’ and employees’ criminal records confidential. Only use
it for the purpose for which it was intended.

Approved by the Commission:

_____________________________
Chair Jacqueline A. Berrien

_____________
Date

26

0029

ENDNOTES

1

42 U.S.C. § 2000e et seq. The EEOC also enforces other anti-discrimination laws
including: Title I of the Americans with Disabilities Act of 1990, as amended (ADA), and
Section 501 of the Rehabilitation Act, as amended, which prohibit employment discrimination on
the basis of disability; the Age Discrimination in Employment Act of 1967, as amended
(ADEA), which prohibits discrimination on the basis of age 40 or above; Title II of the Genetic
Information Nondiscrimination Act of 2008 (GINA), which prohibits discrimination on the basis
of genetic information; and the Equal Pay Act of 1963, as amended (EPA), which requires
employers to pay male and female employees at the same establishment equal wages for equal
work.

2

All entities covered by Title VII are subject to this analysis. See 42 U.S.C. § 2000e-2
(anti-discrimination provisions); 42 U.S.C. § 2000e(b)–(e) (defining “employer,” “employment
agency,” and “labor organization”); 42 U.S.C. § 2000e-16(a) (prohibiting discriminatory
employment practices by federal departments and agencies). For purposes of this Guidance, the
term “employer” is used in lieu of listing all Title VII-covered entities. The Commission
considers other coverage questions that arise in particular charges involving, for example, joint
employment or third party interference in Compliance Manual Section 2: Threshold Issues, U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, § 2-III B., Covered Entities,
http://www.eeoc.gov/policy/docs/threshold.html#2-III-B (last visited April 23, 2012).
3

For the purposes of this Guidance, references to “contact” with the criminal justice
system may include, for example, an arrest, charge, indictment, citation, conviction,
incarceration, probation, or parole.
4

See THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974–2001, at 3 (2003),
http://bjs.ojp.usdoj.gov/content/pub/pdf/piusp01.pdf [hereinafter PREVALENCE OF
IMPRISONMENT] (“Between 1974 and 2001 the number of former prisoners living in the United
States more than doubled, from 1,603,000 to 4,299,000.”); SEAN ROSENMERKEL ET AL., BUREAU
OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY SENTENCES IN STATE COURTS, 2006 –
STATISTICAL TABLES 1 (2009), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf (reporting
that between 1990 and 2006, there has been a 37% increase in the number of felony offenders
sentenced in state courts); see also PEW CTR. ON THE STATES, ONE IN 31: THE LONG REACH OF
AMERICAN CORRECTIONS 4 (2009),
http://www.pewcenteronthestates.org/uploadedFiles/PSPP_1in31_report_FINAL_WEB_3-2609.pdf [hereinafter ONE IN 31] (“During the past quarter-century, the number of prison and jail
inmates has grown by 274 percent . . . .[bringing] the total population in custody to 2.3 million.
During the same period, the number under community supervision grew by a staggering
3,535,660 to a total of 5.1 million.”); PEW CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN
AMERICA 2008, at 3 (2008),
http://www.pewcenteronthestates.org/uploadedFiles/8015PCTS_Prison08_FINAL_2-11_FORWEB.pdf (“[M]ore than one in every 100 adults is now confined in an American jail or

27

0030

prison.”); Robert Brame, Michael G. Turner, Raymond Paternoster, & Shawn D. Bushway,
Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 PEDIATRICS 21,
25, 26 (2012) (finding that approximately 1 out of 3 of all American youth will experience at
least 1 arrest for a nontraffic offense by the age of 23).
5

See JOHN SCHMITT & KRIS WARNER, CTR. FOR ECON. & POLICY RESEARCH, EXOFFENDERS AND THE LABOR MARKET 12 (2010), www.cepr.net/documents/publications/exoffenders-2010-11.pdf (“In 2008, ex-prisoners were 2.9 to 3.2 percent of the total working-age
population (excluding those currently in prison or jail) or about one in 33 working-age adults.
Ex-felons were a larger share of the total working-age population: 6.6 to 7.4 percent, or about
one in 15 working-age adults [not all felons serve prison terms].”); see id. at 3 (concluding that
“in the absence of some reform of the criminal justice system, the share of ex-offenders in the
working-age population will rise substantially in coming decades”).
6

PREVALENCE OF IMPRISONMENT, supra note 4, at 4, Table 3.

7

Id.

8

ONE IN 31, supra note 4, at 5 (noting that when all of the individuals who are
probationers, parolees, prisoners or jail inmates are added up, the total is more than 7.3 million
adults; this is more than the populations of Chicago, Philadelphia, San Diego, and Dallas
combined, and larger than the populations of 38 states and the District of Columbia).
9

PREVALENCE OF IMPRISONMENT, supra note 4, at 7.

10

Id. at 5, Table 5; cf. PEW CTR. ON THE STATES, COLLATERAL COSTS: INCARCERATION’S
EFFECT ON ECONOMIC MOBILITY 6 (2010),
http://www.pewcenteronthestates.org/uploadedFiles/Collateral_Costs.pdf?n=8653 (“Simply
stated, incarceration in America is concentrated among African American men. While 1 in every
87 white males ages 18 to 64 is incarcerated and the number for similarly-aged Hispanic males is
1 in 36, for black men it is 1 in 12.”). Incarceration rates are even starker for 20-to-34-year-old
men without a high school diploma or GED: 1 in 8 White males in this demographic group is
incarcerated, compared to 1 in 14 Hispanic males, and 1 in 3 Black males. PEW CTR. ON THE
STATES, supra, at 8, Figure 2.
11

This document uses the terms “Black” and “African American,” and the terms
“Hispanic” and “Latino,” interchangeably.
12

See infra notes 65–67 (citing data for the arrest rates and population statistics for African
Americans and Hispanics).
13

PREVALENCE OF IMPRISONMENT, supra note 4, at 1.

14

Id. at 8.

28

0031

15

See Policy Statement on the Issue of Conviction Records Under Title VII of the Civil
Rights Act of 1964, U.S. EQUAL EMP’T OPPORTUNITY COMM’N (Feb. 4, 1987),
http://www.eeoc.gov/policy/docs/convict1.html; EEOC Policy Statement on the Use of Statistics
in Charges Involving the Exclusion of Individuals with Conviction Records from Employment,
U.S. EQUAL EMP’T OPPORTUNITY COMM’N (July 29, 1987),
http://www.eeoc.gov/policy/docs/convict2.html; Policy Guidance on the Consideration of Arrest
Records in Employment Decisions Under Title VII, U.S. EQUAL EMP’T OPPORTUNITY COMM’N
(Sept. 7, 1990), http://www.eeoc.gov/policy/docs/arrest_records.html; Compliance Manual
Section 15: Race & Color Discrimination, U.S. EQUAL EMP’T OPPORTUNITY COMM’N, § 15VI.B.2 (April 19, 2006), http://www.eeoc.gov/policy/docs/race-color.pdf. See also EEOC
Decision No. 72-1497 (1972) (challenging a criminal record exclusion policy based on “serious
crimes”); EEOC Decision No. 74-89 (1974) (challenging a policy where a felony conviction was
considered an adverse factor that would lead to disqualification); EEOC Decision No. 78-03
(1977) (challenging an exclusion policy based on felony or misdemeanor convictions involving
moral turpitude or the use of drugs); EEOC Decision No. 78-35 (1978) (concluding that an
employee’s discharge was reasonable given his pattern of criminal behavior and the severity and
recentness of his criminal conduct).
16

In 2011, U.S. Attorney General Eric Holder assembled a Cabinet-level interagency
Reentry Council to support the federal government’s efforts to promote the successful
reintegration of ex-offenders back into their communities. National Reentry Resource Center –
Federal Interagency Reentry Council, http://www.nationalreentryresourcecenter.org/reentrycouncil (last visited April 23, 2012). As a part of the Council’s efforts, it has focused on
removing barriers to employment for ex-offenders to reduce recidivism by publishing several
fact sheets on employing individuals with criminal records. See, e.g., FED. INTERAGENCY
REENTRY COUNCIL, REENTRY MYTHBUSTER! ON FEDERAL HIRING POLICIES (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1083/Reentry_Council_Mythbust
er_Fed_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! ON
HIRING/CRIMINAL RECORDS GUIDANCE (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1082/Reentry_Council_Mythbust
er_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! CRIMINAL
HISTORIES AND EMPLOYMENT BACKGROUND CHECKS (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1176/Reentry_Council_Mythbust
er_FCRA_Employment.pdf; FED. INTERAGENCY REENTRY COUNCIL, REENTRY MYTHBUSTER! ON
FEDERAL BONDING PROGRAM (2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1061/Reentry_Council_Mythbust
er_Federal_Bonding.pdf.
In addition to these federal efforts, several state law enforcement agencies have embraced
initiatives and programs that encourage the employment of ex-offenders. For example, Texas’
Department of Criminal Justice has a Reentry and Integration Division and within that Division,
a Reentry Task Force Workgroup. See Reentry and Integration Division-Reentry Task Force,
TEX. DEP’T OF CRIMINAL JUSTICE,
http://www.tdcj.state.tx.us/divisions/rid/rid_texas_reentry_task_force.html (last visited April 23,
2012). One of the Workgroups in this Task Force specifically focuses on identifying

29

0032

employment opportunities for ex-offenders and barriers that affect ex-offenders’ access to
employment or vocational training programs. Reentry and Integration Division – Reentry Task
Force Workgroups, TEX. DEP’T OF CRIMINAL JUSTICE,
http://www.tdcj.state.tx.us/divisions/rid/r_workgroup/rid_workgroup_employment.html (last
visited April 23, 2012). Similarly, Ohio’s Department of Rehabilitation and Correction has an
Offender Workforce Development Office that “works with departmental staff and correctional
institutions within the Ohio Department of Rehabilitation and Correction to prepare offenders for
employment and the job search process.” Jobs for Ohio Offenders, OHIO DEP’T OF REHAB. AND
CORR. OFFENDER WORKFORCE DEV., http://www.drc.ohio.gov/web/JOBOFFEN.HTM (last
updated Aug. 9, 2010). Law enforcement agencies in other states such as Indiana and Florida
have also recognized the importance of encouraging ex-offender employment. See, e.g., IDOC:
Road to Re-Entry, IND. DEP’T OF CORR., http://www.in.gov/idoc/reentry/index.htm (last visited
April 23, 2012) (describing various services and programs that are available to ex-offenders to
help them to obtain employment); FLA. DEP’T OF CORRS., RECIDIVISM REDUCTION STRATEGIC
PLAN: FISCAL YEAR 2009-2014, at 11, 12 (2009),
http://www.dc.state.fl.us/orginfo/FinalRecidivismReductionPlan.pdf (identifying the lack of
employment as one of the barriers to successful ex-offender reentry).
17

CARL R. ERNST & LES ROSEN, “NATIONAL” CRIMINAL HISTORY DATABASES 1 (2002),
http://www.brbpub.com/articles/CriminalHistoryDB.pdf.
18

LEXISNEXIS, CRIMINAL BACKGROUND CHECKS: WHAT NON-PROFITS NEED TO KNOW
ABOUT CRIMINAL RECORDS 4 (2009),
http://www.lexisnexis.com/risk/nonprofit/documents/Volunteer_Screening_White_Paper.pdf.
19

Id.

20

ERNST & ROSEN, supra note 17, at 1; NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS,
CRIMINAL BACKGROUND CHECKS FOR EMPLOYMENT PURPOSES 5,
http://www.napbs.com/files/public/Learn_More/White_Papers/CriminalBackgroundChecks.pdf.
LEXISNEXIS, supra note 18, at 6. See also NAT’L ASS’N OF PROF’L BACKGROUND
SCREENERS, supra note 20 at 5.
21

22

ERNST & ROSEN, supra note 17, at 1.

23

Id.

24

See SEARCH, THE NATIONAL TASK FORCE ON THE CRIMINAL BACKGROUNDING OF
AMERICA 3, 4 (2005), http://www.search.org/files/pdf/ReportofNTFCBA.pdf. Registries and
watch lists can also include federal and international terrorist watch lists, and registries of
individuals who are being investigated for certain types of crimes, such as gang-related crimes.
Id. See also LEXISNEXIS, supra note 18, at 5 (reporting that “all 50 states currently have a
publicly available sex offender registry”).
25

See U.S. DEP’T OF JUSTICE, THE ATTORNEY GENERAL’S REPORT ON CRIMINAL HISTORY

30

0033

BACKGROUND CHECKS 4 (2006), http://www.justice.gov/olp/ag_bgchecks_report.pdf [hereinafter
BACKGROUND CHECKS]. See also ERNST & ROSEN, supra note 17, at 2.
26

See NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS, supra note 20, at 5. See also
LEXISNEXIS, supra note 18, at 5.

27

LEXISNEXIS, supra note 18, at 5. See also AM. ASS’N OF COLLS. OF PHARMACY, REPORT
OF THE AACP CRIMINAL BACKGROUND CHECK ADVISORY PANEL 6–7 (2006),
http://www.aacp.org/resources/academicpolicies/admissionsguidelines/Documents/AACPBackgr
oundChkRpt.pdf.
28

AM. ASS’N OF COLLS. OF PHARMACY, supra note 27, at 6–7.

29

BACKGROUND CHECKS, supra note 25, at 4.

30

Id.

31

NAT’L ASS’N OF PROF’L BACKGROUND SCREENERS, supra note 20, at 5.

32

BACKGROUND CHECKS, supra note 25, at 4.

33

Id. at 3.

34

See id. (“Non-criminal justice screening using FBI criminal history records is typically
done by a government agency applying suitability criteria that have been established by law or
the responsible agency.”).

35

Id. at 5.

36

Id. at 4.

37

DENNIS A. DEBACCO & OWEN M. GREENSPAN, BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, SURVEY OF STATE CRIMINAL HISTORY INFORMATION SYSTEMS, 2010, at 2
(2011), https://www.ncjrs.gov/pdffiles1/bjs/grants/237253.pdf [hereinafter STATE CRIMINAL
HISTORY].
38

See BACKGROUND CHECKS, supra note 25, at 17.

39

SEARCH, REPORT OF THE NATIONAL TASK FORCE ON THE COMMERCIAL SALE OF
CRIMINAL JUSTICE RECORD INFORMATION 83 (2005),
www.search.org/files/pdf/RNTFCSCJRI.pdf; see also Douglas Belkin, More Job Seekers
Scramble to Erase Their Criminal Past, WALL ST. J., Nov. 11, 2009, at A1, available at
http://online.wsj.com/article/SB125789494126242343.html?KEYWORDS=Douglas+Belkin
(“Arrests that have been legally expunged may remain on databases that data-harvesting
companies offer to prospective employers; such background companies are under no legal
obligation to erase them.”).

31

0034

If applicants deny the existence of expunged or sealed records, as they are permitted to do
in several states, they may appear dishonest if such records are reported in a criminal background
check. See generally Debbie A. Mukamal & Paul N. Samuels, Statutory Limitations on Civil
Rights of People with Criminal Records, 30 FORDHAM URB. L.J. 1501, 1509–10 (2003) (noting
that 29 of the 40 states that allow expungement/sealing of arrest records permit the subject of the
record to deny its existence if asked about it on employment applications or similar forms, and
13 of the 16 states that allow the expungement/sealing of adult conviction records permit the
subject of the record to deny its existence under similar circumstances).
40

See SEARCH, INTERSTATE IDENTIFICATION NAME CHECK EFFICACY: REPORT OF THE
NATIONAL TASK FORCE TO THE U.S. ATTORNEY GENERAL 21–22 (1999),
www.search.org/files/pdf/III_Name_Check.pdf (“A so-called 'name check' is based not only on
an individual's name, but also on other personal identifiers such as sex, race, date of birth and
Social Security Number. . . . [N]ame checks are known to produce inaccurate results as a
consequence of identical or similar names and other identifiers."); id. at 7 (finding that in a
sample of 82,601 employment applicants, 4,562 of these individuals were inaccurately indicated
by a “name check” to have criminal records, which represents approximately 5.5% of the overall
sample).
41

BACKGROUND CHECKS, supra note 25, at 2.

42

A “consumer reporting agency” is defined by FCRA as “any person which, for monetary
fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the
practice of assembling or evaluating consumer credit information or other information on
consumers for the purposes of furnishing consumer reports to third parties . . . .” 15 U.S.C.
§ 1681a(f) (emphasis added); see also BACKGROUND CHECKS, supra note 25, at 43 (stating that
the records that CRAs collect include “criminal history information, such as arrest and
conviction information”).
43

A “consumer report” is defined by FCRA as “any written, oral, or other communication
of any information by a consumer reporting agency bearing on a consumer’s credit worthiness,
credit standing, credit capacity, character, general reputation, personal characteristics, or mode
of living which is used or expected to be used or collected in whole or in part for the purpose of
serving as a factor in establishing the consumer’s eligibility for . . . employment purposes . . . .”
15 U.S.C. § 1681a(d)(1) (emphasis added).
44

See 15 U.S.C. § 1681c(a)(2) (“[N]o consumer reporting agency may make any consumer
report containing . . . records of arrest that, from date of entry, antedate the report by more than
seven years or until the governing statute of limitations has expired, whichever is the longer
period.”). But see id. §1681c(b)(3) (stating that the reporting restrictions for arrest records do not
apply to individuals who will earn “an annual salary which equals, or which may reasonably be
expected to equal $75,000 or more”).
45

15 U.S.C. § 1681c(a)(5) (“[N]o consumer reporting agency may make any consumer
report containing . . . [a]ny other adverse item of information, other than records of convictions
of crimes which antedates the report by more than seven years.”).

32

0035

46

BACKGROUND CHECKS, supra note 25, at 2.

47

See Adam Klein, Written Testimony of Adam Klein, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/7-26-11/klein.cfm (last visited April 23, 2012)
(describing how “several data-collection agencies also market and sell a retail-theft contributory
database that is used by prospective employers to screen applicants”). See also Retail Theft
Database, ESTEEM, Workplace Theft Contributory Database, LEXISNEXIS,
http://www.lexisnexis.com/risk/solutions/retail-theft-contributory-database.aspx (last visited
April 23, 2012) (stating that their database has “[t]heft and shoplifting cases supplied by more
than 75,000 business locations across the country”). These databases may contain inaccurate
and/or misleading information about applicants and/or employees. See generally Goode v.
LexisNexis Risk & Info. Analytics Grp., Inc., No. 2:11-CV-2950-JD, 2012 WL 975043 (E.D. Pa.
Mar. 22, 2012) (unpublished).
48

BACKGROUND CHECKS, supra note 25, at 2.

49

SOC’Y FOR HUMAN RES. MGMT., BACKGROUND CHECKING: CONDUCTING CRIMINAL
BACKGROUND CHECKS, slide 3 (Jan. 22, 2010), http://www.slideshare.net/shrm/backgroundcheck-criminal?from=share_email [hereinafter CONDUCTING CRIMINAL BACKGROUND CHECKS]
(73% of the responding employers reported that they conducted criminal background checks on
all of their job candidates, 19% reported that they conducted criminal background checks on
selected job candidates, and a mere 7% reported that they did not conduct criminal background
checks on any of their candidates). The survey excluded the “not sure” responses from its
analysis, which may account for the 1% gap in the total number of employer responses. Id.
50

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (39% of the
surveyed employers reported that they conducted criminal background checks “[t]o
reduce/prevent theft and embezzlement, other criminal activity”); see also Sarah E. Needleman,
Businesses Say Theft by Their Workers is Up, WALL ST. J., Dec. 11, 2008, at B8, available at
http://online.wsj.com/article/SB122896381748896999.html.
51

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (61% of the
surveyed employers reported that they conducted criminal background checks “[to] ensure a safe
work environment for employees”); see also ERIKA HARRELL, BUREAU OF JUSTICE STATISTICS,
U.S. DEP’T OF JUSTICE, WORKPLACE VIOLENCE, 1993–2009, at 1 (2011),
http://bjs.ojp.usdoj.gov/content/pub/pdf/wv09.pdf (reporting that in 2009, “[n]onfatal violence in
the workplace was about 15% of all nonfatal violent crime against persons age 16 or older”). But
see id. (noting that from “2002 to 2009, the rate of nonfatal workplace violence has declined by
35%, following a 62% decline in the rate from 1993 to 2002”). Studies indicate that most
workplace violence is committed by individuals with no relationship to the business or its
employees. See id. at 6 (reporting that between 2005 and 2009, strangers committed the majority
of workplace violence against individuals (53% for males and 41% for females) while violence
committed by co-workers accounted for a much smaller percentage (16.3% for males and 14.3%
for females)); see also NAT’L INST. FOR OCCUPATIONAL SAFETY & HEALTH, CTR. FOR DISEASE
CONTROL & PREVENTION, WORKPLACE VIOLENCE PREVENTION STRATEGIES AND RESEARCH

33

0036

NEEDS 4, Table 1 (2006), http://www.cdc.gov/niosh/docs/2006-144/pdfs/2006-144.pdf (reporting
that approximately 85% of the workplace homicides examined were perpetrated in furtherance
of a crime by persons with no relationship to the business or its employees; approximately 7%
were perpetrated by employees or former employees, 5% were committed by persons with a
personal relationship to an employee, and 3% were perpetrated by persons with a customer-client
relationship to the business).
52

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 7 (55% percent of
the surveyed employers reported that they conducted criminal background checks “[t]o reduce
legal liability for negligent hiring”). Employers have a common law duty to exercise reasonable
care in hiring to avoid foreseeable risks of harm to employees, customers, and the public. If an
employee engages in harmful misconduct on the job, and the employer has not exercised such
care in selecting the employee, the employer may be subject to liability for negligent hiring. See,
e.g., Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1318 (M.D. Fla. 2002) (“[N]egligent hiring
occurs when . . . the employer knew or should have known of the employee’s unfitness, and the
issue of liability primarily focuses upon the adequacy of the employer’s pre-employment
investigation into the employee’s background.”).
53

CONDUCTING CRIMINAL BACKGROUND CHECKS, supra note 49, at slide 4 (40% of the
surveyed employers reported that they conducted criminal background checks for “[j]ob
candidates for positions for which state law requires a background check (e.g., day care teachers,
licensed medical practitioners, etc.)”); see id. at slide 7 (20% of the employers reported that they
conducted criminal background checks “[t]o comply with the applicable State law requiring a
background check (e.g., day care teachers, licensed medical practitioners, etc.) for a particular
position”). The study did not report the exact percentage of employers that conducted criminal
background checks to comply with applicable federal laws or regulations, but it did report that
25% of the employers conducted background checks for “[j]ob candidates for positions involving
national defense or homeland security.” Id. at slide 4.
54

See 42 U.S.C. § 2000e-2(a).

55

Disparate treatment based on the race or national origin of job applicants with the same
qualifications and criminal records has been documented. For example, a 2003 study
demonstrated that White applicants with the same qualifications and criminal records as Black
applicants were three times more likely to be invited for interviews than the Black applicants.
See Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC. 937, 958, Figure 6 (2003),
www.princeton.edu/~pager/pager_ajs.pdf. Pager matched pairs of young Black and White men
as “testers” for her study. The “testers” in Pager’s study were college students who applied for
350 low-skilled jobs advertised in Milwaukee-area classified advertisements, to test the degree to
which a criminal record affects subsequent employment opportunities. The same study showed
that White job applicants with a criminal record were called back for interviews more often than
equally-qualified Black applicants who did not have a criminal record. Id. at 958. See also
Devah Pager et al., Sequencing Disadvantage: The Effects of Race and Criminal Background for
Low Wage Job Seekers, 623 ANNALS AM. ACAD. POL. & SOC. SCI., 199 (2009),
www.princeton.edu/~pager/annals_sequencingdisadvantage.pdf (finding that among Black and

34

0037

White testers with similar backgrounds and criminal records, “the negative effect of a criminal
conviction is substantially larger for blacks than whites. . . . the magnitude of the criminal record
penalty suffered by black applicants (60 percent) is roughly double the size of the penalty for
whites with a record (30 percent)”); see id. at 200–201 (finding that personal contact plays an
important role in mediating the effects of a criminal stigma in the hiring process, and that Black
applicants are less often invited to interview, thereby having fewer opportunities to counteract
the stigma by establishing rapport with the hiring official); Devah Pager, Statement of Devah
Pager, Professor of Sociology at Princeton University, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/11-20-08/pager.cfm (last visited April 23, 2012)
(discussing the results of the Sequencing Disadvantage study); DEVAH PAGER & BRUCE
WESTERN, NYC COMMISSION ON HUMAN RIGHTS, RACE AT WORK, REALITIES OF RACE AND
CRIMINAL RECORD IN THE NYC JOB MARKET 6, Figure 2 (2006),
http://www.nyc.gov/html/cchr/pdf/race_report_web.pdf (finding that White testers with a felony
conviction were called back 13% of the time, Hispanic testers without a criminal record were
called back 14% of the time, and Black testers without a criminal record were called back 10% of
the time).
56

Race & Color Discrimination, supra note 15, § V.A.1.

57

A 2006 study demonstrated that employers who are averse to hiring people with criminal
records sometimes presumed, in the absence of evidence to the contrary, that African American
men applying for jobs have disqualifying criminal records. Harry J. Holzer et al., Perceived
Criminality, Criminal Background Checks, and the Racial Hiring Practices of Employers, 49
J.L. & ECON. 451 (2006), http://www.jstor.org/stable/pdfplus/10.1086/501089.pdf; see also
HARRY HOLZER ET AL., URBAN INST., EMPLOYER DEMAND FOR EX-OFFENDERS: RECENT
EVIDENCE FROM LOS ANGELES 6–7 (2003),
http://www.urban.org/UploadedPDF/410779_ExOffenders.pdf (describing the results of an
employer survey where over 40% of the employers indicated that they would “probably not” or
“definitely not” be willing to hire an applicant with a criminal record).
58

The Commission has not done matched-pair testing to investigate alleged discriminatory
employment practices. However, it has issued an Enforcement Guidance that discusses
situations where individuals or organizations file charges on the basis of matched-pair testing,
among other practices. See generally Enforcement Guidance: Whether “Testers” Can File
Charges and Litigate Claims of Employment Discrimination, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N (May 22, 1996), http://www.eeoc.gov/policy/docs/testers.html.
59

42 U.S.C. § 2000e-2(k)(1)(A)(i). If an employer successfully demonstrates that its policy
or practice is job related for the position in question and consistent with business necessity, a
Title VII plaintiff may still prevail by demonstrating that there is a less discriminatory
“alternative employment practice” that serves the employer’s legitimate goals as effectively as
the challenged practice but that the employer refused to adopt. Id. § 2000e-2(k)(1)(A)(ii).
60

401 U.S. 424, 431–32 (1971).

35

0038

61

Id. at 431.

62

The Civil Rights Act of 1991, Pub. L. No. 102-166, § 105; see also Lewis v. City of
Chicago, 130 S. Ct. 2191 (2010) (reaffirming disparate impact analysis); Ricci v. DeStefano, 557
U.S. 557 (2009) (same).
63

42 U.S.C. § 2000e-2(k)(1)(A)(i).

64

The Commission presumes that employers use the information sought and obtained from
its applicants and others in making an employment decision. See Gregory v. Litton Sys. Inc.,316
F. Supp. 401, 403 (C.D. Cal.1970). If an employer asserts that it did not factor the applicant’s or
employee’s known criminal record into an employment decision, the EEOC will seek evidence
supporting this assertion. For example, evidence that the employer has other employees from the
same protected group with roughly comparable criminal records may support the conclusion that
the employer did not use the applicant’s or employee’s criminal record to exclude him from
employment.
65

UNIF. CRIME REPORTING PROGRAM, FED. BUREAU OF INVESTIGATION, CRIME IN THE U.S.
2010, at Table 43a (2011), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-inthe-u.s.-2010/tables/table-43/10tbl43a.xls.
66

U.S. CENSUS BUREAU, THE BLACK POPULATION: 2010, at 3 (2011) ,
http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf (reporting that in 2010, “14 percent
of all people in the United States identified as Black, either alone, or in combination with one or
more races”).
67

Accurate data on the number of Hispanics arrested and convicted in the United States is
limited. See NANCY E. WALKER ET AL., NAT’L COUNCIL OF LA RAZA, LOST OPPORTUNITIES: THE
REALITY OF LATINOS IN THE U.S. CRIMINAL JUSTICE SYSTEM 17–18 (2004),
http://www.policyarchive.org/handle/10207/bitstreams/20279.pdf (explaining why “[i]t is very
difficult to find any information – let alone accurate information – on the number of Latinos
arrested in the United States”). The Department of Justice’s Bureau of Justice Statistics’ (BJS)
Sourcebook of Criminal Justice Statistics and the FBI’s Crime Information Services Division do
not provide data for arrests by ethnicity. Id. at 17. However, the U.S. Drug Enforcement
Administration (DEA) disaggregates data by Hispanic and non-Hispanic ethnicity. Id. at 18.
According to DOJ/BJS, from October 1, 2008 to September 30, 2009, 45.5% of drug arrests
made by the DEA were of Hispanics or Latinos. MARK MOTIVANS, BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, FEDERAL JUSTICE STATISTICS, 2009 – STATISTICAL TABLES,
at 6, Table 1.4 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/fjs09.pdf. Accordingly, Hispanics
were arrested for drug offenses by the DEA at a rate of three times their numbers in the general
population. See U.S. CENSUS BUREAU, OVERVIEW OF RACE AND HISPANIC ORIGIN: 2010, at 3
(2011), http://www.census.gov/prod/cen2010/briefs/c2010br-02.pdf (reporting that in 2010,
“there were 50.5 million Hispanics in the United States, composing 16 percent of the total
population”). However, national statistics indicate that Hispanics have similar or lower drug
usage rates compared to Whites. See, e.g., SUBSTANCE ABUSE & MENTAL HEALTH SERVS.

36

0039

ADMIN., U.S. DEP’T OF HEALTH & HUMAN SERVS., RESULTS FROM THE 2010 NATIONAL SURVEY
ON DRUG USE AND HEALTH: SUMMARY OF NATIONAL FINDINGS 21, Figure 2.10 (2011),
http://oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.pdf (reporting, for example, that the
usage rate for Hispanics in 2009 was 7.9% compared to 8.8% for Whites).
68

See, e.g., HUMAN RIGHTS WATCH, DECADES OF DISPARITY: DRUG ARRESTS AND RACE IN
THE UNITED STATES 1 (2009), http://www.hrw.org/sites/default/files/reports/us0309web_1.pdf
(noting that the "[t]he higher rates of black drug arrests do not reflect higher rates of black drug
offending . . . . blacks and whites engage in drug offenses - possession and sales - at roughly
comparable rates"); SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., U.S. DEP'T OF
HEALTH & HUMAN SERVS., RESULTS FROM THE 2010 NATIONAL SURVEY ON DRUG USE AND
HEALTH: SUMMARY OF NATIONAL FINDINGS 21 (2011),
http://oas.samhsa.gov/NSDUH/2k10NSDUH/2k10Results.pdf (reporting that in 2010, the rates
of illicit drug use in the United States among persons aged 12 or older were 10.7% for African
Americans, 9.1% for Whites, and 8.1% for Hispanics); HARRY LEVINE & DEBORAH SMALL,
N.Y. CIVIL LIBERTIES UNION, MARIJUANA ARREST CRUSADE: RACIAL BIAS AND POLICE POLICY
IN NEW YORK CITY, 1997–2007, at 13–16 (2008), www.nyclu.org/files/MARIJUANA-ARRESTCRUSADE_Final.pdf (citing U.S. Government surveys showing that Whites use marijuana at
higher rates than African Americans and Hispanics; however, the marijuana arrest rate of
Hispanics is nearly three times the arrest rate of Whites, and the marijuana arrest rate of African
Americans is five times the arrest rate of Whites).
69

PREVALENCE OF IMPRISONMENT, supra note 4, at 1, 8. Due to the nature of available data,
the Commission is using incarceration data as a proxy for conviction data.
70

Id.

71

Id.

72

MARC MAUER & RYAN S. KING, THE SENTENCING PROJECT, UNEVEN JUSTICE: STATE
RATES OF INCARCERATION BY RACE AND ETHNICITY 10 (2007),
www.sentencingproject.org/Admin%5CDocuments%5Cpublications%5Crd_stateratesofincbyrac
eandethnicity.pdf.
73

Id.

74

PAUL GUERINO ET AL., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
PRISONERS IN 2010, at 27, Table 14 (2011), http://bjs.ojp.usdoj.gov/content/pub/pdf/p10.pdf
(reporting that as of December 31, 2010, Black men were imprisoned at a rate of 3,074 per
100,000 Black male residents, Hispanic men were imprisoned at a rate of 1,258 per 100,000
Hispanic male residents, and White men were imprisoned at a rate of 459 per 100,000 White
male residents); cf. ONE IN 31, supra note 4, at 5 (“Black adults are four times as likely as whites
and nearly 2.5 times as likely as Hispanics to be under correctional control. One in 11 black
adults -- 9.2 percent -- was under correctional control [probation, parole, prison, or jail] at year
end 2007.”).

37

0040

75

The Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. part 1607,
provide that “[employers] should maintain and have available . . . information on [the] adverse
impact of [their employment selection procedures].” 29 C.F.R. § 1607.15A. “Where [an
employer] has not maintained [such records, the EEOC] may draw an inference of adverse
impact of the selection process from the failure of [the employer] to maintain such data . . . .” Id.
§ 1607.4D.
76

See, e.g., El v. SEPTA, 418 F. Supp. 2d 659, 668–69 (E.D. Pa. 2005) (finding that the
plaintiff established a prima facie case of disparate impact with evidence from the defendant’s
personnel records and national data sources from the U.S. Bureau of Justice Statistics and the
Statistical Abstract of the U.S.), aff’d on other grounds, 479 F.3d 232 (3d Cir. 2007); Green v.
Mo. Pac. R.R., 523 F.2d 1290, 1294–95 (8th Cir. 1975) (concluding that the defendant’s criminal
record exclusion policy had a disparate impact based on race by evaluating local population
statistics and applicant data), appeal after remand, 549 F.2d 1158, 1160 (8th Cir. 1977).
77

457 U.S. 440, 442 (1982).

78

Id. at 453–54

79

433 U.S. 321, 330 (1977).

80

See, e.g., Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 365 (1977) (stating that
“[a] consistently enforced discriminatory policy can surely deter job applications from those who
are aware of it and are unwilling to subject themselves to the humiliation of explicit and certain
rejection”).
81

42 U.S.C. § 2000e-2(k)(1)(A)(i). See Griggs v. Duke Power Co., 401 U.S. 424 (1971).
See also 42 U.S.C. § 2000e(m) (defining the term “demonstrates” to mean “meets the burdens of
production and persuasion”).
82

422 U.S. 405 (1975).

83

433 U.S. 321 (1977).

84

137 CONG. REC. 15273 (1991) (statement of Sen. Danforth) (“[T]he terms ‘business
necessity’ and ‘job related’ are intended to reflect the concepts enunciated by the Supreme Court
in Griggs v. Duke Power Co, and in the other Supreme Court decisions prior to Wards Cove
Packing Co. v. Atonio.” (citations omitted)). Section 105(b) of the Civil Rights Act of 1991
provides that only the interpretive memorandum read by Senator Danforth in the Congressional
Record may be considered legislative history or relied upon in construing or applying the
business necessity standard.
85

401 U.S. at 431, 436.

38

0041

86

422 U.S. at 430–31 (endorsing the EEOC’s position that discriminatory tests are
impermissible unless shown, by professionally acceptable methods, to predict or correlate with
“‘important elements of work behavior which comprise or are relevant to the job or jobs for
which candidates are being evaluated’” (quoting 29 C.F.R. § 1607.4(c))).
87

433 U.S. at 331–32 (concluding that using height and weight as proxies for strength did
not satisfy the business necessity defense because the employer failed to establish a correlation
between height and weight and the necessary strength, and also did not specify the amount of
strength necessary to perform the job safely and efficiently).
88

Id. at 331 n.14.

89

523 F.2d 1290, 1293 (8th Cir. 1975). “In response to a question on an application form,
Green [a 29-year-old African American man] disclosed that he had been convicted in December
1967 for refusing military induction. He stated that he had served 21 months in prison until
paroled on July 24, 1970.” Id. at 1292–93.
90

Green v. Mo. Pac. R.R., 549 F.2d 1158, 1160 (8th Cir. 1977) (upholding the district
court’s injunction prohibiting the employer from using an applicant’s conviction record as an
absolute bar to employment but allowing it to consider a prior criminal record as a factor in
making individual hiring decisions, as long as the defendant took these three factors into
account).
91

Id. (referring to completion of the sentence rather than completion of parole).

92

Id.

93

479 F.3d 232 (3d Cir. 2007).

94

Id. at 235.

95

Id. at 235, 236.

96

Id. at 235.

97

Id. at 244.

98

Id. at 244–45.

99

Id. at 247. Cf. Shawn Bushway et al., The Predictive Value of Criminal Background
Checks: Do Age and Criminal History Affect Time to Redemption?, 49 CRIMINOLOGY 27, 52
(2011) [hereinafter The Predictive Value of Criminal Background Checks] (“Given the results of
the current as well as previous [recidivism] studies, the 40-year period put forward in El v.
SEPTA (2007) . . . seems too old of a score to be still in need of settlement.”).

39

0042

100

El, 479 F.3d at 248.

101

Some states have enacted laws to limit employer inquiries concerning all or some arrest
records. See BACKGROUND CHECKS, supra note 25, at 48–49. At least 13 states have statutes
explicitly prohibiting arrest record inquiries and/or dissemination subject to certain exceptions.
See, e.g., Alaska (ALASKA STAT. § 12.62.160(b)(8)); Arkansas (ARK. CODE ANN. § 12-121009(c)); California (CAL. LAB. CODE § 432.7(a)); Connecticut (CONN. GEN. STAT. § 46a-80(e));
Illinois (775 ILL. COMP. STAT. § 5/2-103(A)) (dealing with arrest records that have been ordered
expunged, sealed, or impounded); Massachusetts (MASS. GEN. LAWS ch. 151B § 4(9)); Michigan
(MICH COMP. LAWS § 37.2205a(1) (applying to misdemeanor arrests only)); Nebraska (NEB.
REV. STAT. § 29-3523(2)) (ordering no dissemination of arrest records under certain conditions
and specified time periods)); New York (N.Y. EXEC. LAW § 296(16)); North Dakota (N.D. CENT.
CODE § 12-60-16.6(2)); Pennsylvania (18 PA. CONS. STAT. § 9121(b)(2)); Rhode Island (R.I.
GEN. LAWS § 28-5-7(7)), and Wisconsin (WIS. STAT. §§ 111.321, 111.335a).
102

See United States v. Armstrong, 517 U.S. 456, 464 (1996) (discussing federal
prosecutors’ broad discretionary authority to determine whether to prosecute cases and whether
to bring charges before a grand jury); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)
(explaining same for state prosecutors); see also THOMAS H. COHEN & TRACEY KYCKELHAHN,
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, FELONY DEFENDANTS IN LARGE URBAN
COUNTIES, 2006, at 10, Table 11 (2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf
(reporting that in the 75 largest counties in the country, nearly one-third of the felony arrests did
not result in a conviction because the charges against the defendants were dismissed).
103

Schware v. Bd. of Bar Exam’rs, 353 U.S. 232, 241 (1957) (“The mere fact that a [person]
has been arrested has very little, if any, probative value in showing that he has engaged in any
misconduct.”); United States. v. Hynes, 467 F.3d 951, 957 (6th Cir. 2006) (upholding a
preliminary jury instruction that stated that a “defendant is presumed to be innocent unless
proven guilty. The indictment against the Defendant is only an accusation, nothing more. It’s
not proof of guilt or anything else.”); see Gregory v. Litton Sys. Inc., 316 F. Supp. 401, 403
(C.D. Cal. 1970) (“[I]nformation concerning a prospective employee’s record of arrests without
convictions, is irrelevant to [an applicant’s] suitability or qualification for employment.”),
modified on other grounds, 472 F.2d 631 (9th Cir. 1972); Dozier v. Chupka, 395 F. Supp. 836,
850 n.10 (S.D. Ohio 1975) (stating that the use of arrest records was too crude a predictor of an
employee’s predilection for theft where there were no procedural safeguards to prevent reliance
on unwarranted arrests); City of Cairo v. Ill. Fair Empl. Prac. Comm., 8 Empl. Prac. Dec. (CCH)
& 9682 (Ill. App. Ct. 1974) (concluding that, where applicants sought to become police officers,
they could not be absolutely barred from appointment solely because they had been arrested, as
distinguished from convicted); see also EEOC Dec. 74-83, ¶ 6424 (CCH) (1983) (finding no
business justification for an employer’s unconditional termination of all employees with arrest
records (all five employees terminated were Black), purportedly to reduce thefts in the
workplace; the employer produced no evidence that these particular employees had been
involved in any of the thefts, or that all people who are arrested but not convicted are prone
towards crime in the future); EEOC Dec. 76-87, ¶ 6665 (CCH) (1983) (holding that an applicant
who sought to become a police officer could not be rejected based on one arrest five years earlier

40

0043

for riding in a stolen car when he asserted that he did not know that the car was stolen and the
charge was dismissed).
104

See STATE CRIMINAL HISTORY, supra note 37, at 2; see also BACKGROUND CHECKS,
supra note 25, at 17.
105

See supra notes 39–40.

106

See Clark v. Arizona, 548 U.S. 735, 766 (2006) (“The first presumption [in a criminal
case] is that a defendant is innocent unless and until the government proves beyond a reasonable
doubt each element of the offense charged. . . .”). See also FED. R. CRIM P 11 (criminal procedure
rule governing pleas). The Supreme Court has concluded that criminal defendants have a Sixth
Amendment right to effective assistance of counsel during plea negotiations. See generally
Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399 (2012).
107

See supra text accompanying note 39.

108

See e.g., HAW. REV. STAT. § 378-2.5(b). Under this provision, the employer may
withdraw the offer of employment if the prospective employee has a conviction record “that
bears a rational relationship to the duties and responsibilities of the position.” Id. See also
CONN. GEN. STAT. § 46a-80(b) (“[N]o employer . . . shall inquire about a prospective employee’s
past convictions until such prospective employee has been deemed otherwise qualified for the
position.”); MINN. STAT. § 364.021(a) (“[A] public employer may not inquire or consider the
criminal record or criminal history of an applicant for public employment until the applicant has
been selected for an interview by the employer.”). State fair employment practices agencies
have information about applicable state law.
109

See generally NAT’L LEAGUE OF CITIES & NAT’L EMP’T LAW PROJECT, CITIES PAVE THE
WAY: PROMISING REENTRY POLICIES THAT PROMOTE LOCAL HIRING OF PEOPLE WITH CRIMINAL
RECORDS (2010), www.nelp.org/page/-/SCLP/2010/CitiesPavetheWay.pdf?nocdn=1 (identifying
local initiatives that address ways to increase employment opportunities for individuals with
criminal records, including delaying a background check until the final stages of the hiring
process, leveraging development funds, and expanding bid incentive programs to promote local
hiring priorities); NAT’L EMP’T LAW PROJECT, CITY AND COUNTY HIRING INITIATIVES (2010),
www.nelp.org/page/-/SCLP/CityandCountyHiringInitiatives.pdf (discussing the various city and
county initiatives that have removed questions regarding criminal history from the job
application and have waited until after a conditional offer of employment has been made to
conduct a background check and inquire about the applicant’s criminal background).
110

Several federal laws automatically prohibit employing individuals with certain felony
convictions or, in some cases, misdemeanor convictions. See, e.g., 5 U.S.C. § 7371(b) (requiring
the mandatory removal of any federal law enforcement officer who is convicted of a felony); 46
U.S.C. § 70105(c)(1)(A) (mandating that individuals who have been convicted of espionage,
sedition, treason or terrorism be permanently disqualified from receiving a biometric
transportation security card and thereby excluded from port work employment); 42 U.S.C.

41

0044

§ 13726(b)(1) (disqualifying persons with felony convictions or domestic violence convictions
from working for a private prisoner transport company); 25 U.S.C. § 3207(b) (prohibiting
individuals with a felony conviction, or any of two or more misdemeanor convictions, from
working with Indian children if their convictions involved crimes of violence, sexual assault,
molestation, exploitation, contact or prostitution, crimes against persons, or offenses committed
against children); 18 U.S.C. § 922(g)(1), (9) (prohibiting an individual convicted of a felony or a
misdemeanor for domestic violence from possessing a firearm, thereby excluding such individual
from a wide range of jobs that require such possession); 18 U.S.C. § 2381 (prohibiting
individuals convicted of treason from “holding any office under the United States”). Other
federal laws prohibit employing individuals with certain convictions for a defined time period.
See, e.g., 5 U.S.C. § 7313(a) (prohibiting individuals convicted of a felony for inciting a riot or
civil disorder from holding any position in the federal government for five years after the date of
the conviction); 12 U.S.C. § 1829 (requiring a ten-year ban on employing individuals in banks if
they have certain financial-related convictions); 49 U.S.C. § 44936(b)(1)(B) (imposing a ten-year
ban on employing an individual as a security screener for an air carrier if that individuals has
been convicted of specified crimes).
111

See 29 C.F.R. § 1607.5 (describing the general standards for validity studies).

112

Id.

113

Id. § 1607.6B. The following subsections state:
(1)

Where informal or unscored procedures are used. When an informal or
unscored selection procedure which has an adverse impact is utilized, the user
should eliminate the adverse impact, or modify the procedure to one which is a
formal, scored or quantified measure or combination of measures and then
validate the procedure in accord with these guidelines, or otherwise justify
continued use of the procedure in accord with Federal law.
(2) Where formal and scored procedures are used. When a formal and scored
selection procedure is used which has an adverse impact, the validation
techniques contemplated by these guidelines usually should be followed if
technically feasible. Where the user cannot or need not follow the validation
techniques anticipated by these guidelines, the user should either modify the
procedure to eliminate adverse impact or otherwise justify continued use of the
procedure in accord with Federal law.
Id. § 1607.6A, B(1)–(2).
114

See, e.g., Brent W. Roberts et al., Predicting the Counterproductive Employee in a Childto-Adult Prospective Study, 92 J. APPLIED PSYCHOL. 1427, 1430 (2007),
http://internal.psychology.illinois.edu/~broberts/Roberts,%20Harms,%20Caspi,%20&%20Moffit
t,%202007.pdf (finding that in a study of New Zealand residents from birth to age 26,
“[a]dolescent criminal convictions were unrelated to committing counterproductive activities at
work [such as tardiness, absenteeism, disciplinary problems, etc.]. In fact, according to the

42

0045

[results of the study], people with an adolescent criminal conviction record were less likely to get
in a fight with their supervisor or steal things from work.”).
115

See OHIO REV. CODE ANN. § 2913.02.

116

523 F.2d at 1298 (stating that “[w]e cannot conceive of any business necessity that would
automatically place every individual convicted of any offense, except a minor traffic offense, in
the permanent ranks of the unemployed”).

117

479 F.3d at 247.

118

See, e.g., Keith Soothill & Brian Francis, When do Ex-Offenders Become Like NonOffenders?, 48 HOWARD J. OF CRIM. JUST., 373, 380–81 (2009) (examining conviction data from
Britain and Wales, a 2009 study found that the risk of recidivism declined for the groups with
prior records and eventually converged within 10 to 15 years with the risk of those of the
nonoffending comparison groups); Alfred Blumstein & Kiminori Nakamura, Redemption in the
Presence of Widespread Criminal Background Checks, 47 CRIMINOLOGY 327 (2009)
(concluding that there may be a “point of redemption” (i.e., a point in time where an individual’s
risk of re-offending or re-arrest is reasonably comparable to individuals with no prior criminal
record) for individuals arrested for certain offenses if they remain crime free for a certain number
of years); Megan C. Kurlychek, Robert Brame & Shawn D. Bushway, Enduring Risk? Old
Criminal Records and Predictions of Future Criminal Involvement, 53 CRIME & DELINQUENCY
64 (2007) (analyzing juvenile police contacts and Racine, Wisconsin police contacts for an
aggregate of crimes for 670 males born in 1942 and concluding that, after seven years, the risk of
a new offense approximates that of a person without a criminal record); Megan C. Kurlychek et
al., Scarlet Letters and Recidivism: Does an Old Criminal Record Predict Future Offending?, 5
CRIMINOLOGY & PUB. POL’Y 483 (2006) (evaluating juvenile police contacts and arrest dates
from Philadelphia police records for an aggregate of crimes for individuals born in 1958, a 2006
study concluded that the risk of recidivism decreases over time and that, six or seven years after
an arrest, an individual’s risk of re-arrest approximates that of an individual who has never been
arrested).
119

Griggs, 401 U.S. at 431.

120

523 F.2d at 1298; see also Field v. Orkin Extermination Co., No. Civ. A. 00-5913, 2002
WL 32345739, at *1 (E.D. Pa. Feb. 21, 2002) (unpublished) (“[A] blanket policy of denying
employment to any person having a criminal conviction is a [per se] violation of Title VII.”).
The only exception would be if such an exclusion were required by federal law or regulation.
See, e.g., supra note 110.

121

Cf. Field, 2002 WL 32345739, at *1. In Field, an employee of ten years was fired after a
new company that acquired her former employer discovered her 6-year-old felony conviction.
The new company had a blanket policy of firing anyone with a felony conviction less than 10
years old. The court granted summary judgment for the employee because the employer’s
argument that her conviction was related to her job qualifications was “weak at best,” especially

43

0046

given her positive employment history with her former employer. Id.
122

Recidivism rates tend to decline as ex-offenders’ ages increase. A 2011 study found that
an individual’s age at conviction is a variable that has a “substantial and significant impact on
recidivism.” The Predictive Value of Criminal Background Checks, supra note 99, at 43. For
example, the 26-year-olds in the study, with no prior criminal convictions, had a 19.6% chance
of reoffending in their first year after their first conviction, compared to the 36-year-olds who
had an 8.8% chance of reoffending during the same time period, and the 46-year-olds who had a
5.3% of reoffending. Id. at 46. See also PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF
JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: RECIDIVISM OF PRISONERS
RELEASED IN 1994, at 7 (2002), http://bjs.ojp.usdoj.gov/content/pub/pdf/rpr94.pdf (finding that,
although 55.7% of ex-offenders aged 14–17 released in 1994 were reconvicted within three
years, the percentage declined to 29.7% for ex-offenders aged 45 and older who were released
the same year).
Consideration of an applicant’s age at the time the offense occurred or at his release from
prison would benefit older individuals and, therefore, would not violate the Age Discrimination
in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq. See Age Discrimination in
Employment Act, 29 C.F.R. § 1625.2 (“Favoring an older individual over a younger individual
because of age is not unlawful discrimination under the ADEA, even if the younger individual is
at least 40 years old.”); see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600
(2004) (concluding that the ADEA does not preclude an employer from favoring an older
employee over a younger one within the protected age group).
123

See Laura Moskowitz, Statement of Laura Moskowitz, Staff Attorney, National
Employment Law Project’s Second Chance Labor Project, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/11-20-08/moskowitz.cfm (last visited April 23,
2012) (stating that one of the factors that is relevant to the assessment of an ex-offender’s risk to
a workplace and to the business necessity analysis, is the “length and consistency of the person’s
work history, including whether the person has been recently employed”; also noting that various
studies have “shown a strong relationship between employment and decreases in crime and
recidivism”). But see Stephen J. Tripodi et al., Is Employment Associated With Reduced
Recidivism?: The Complex Relationship Between Employment and Crime, 54 INT’L J. OF
OFFENDER THERAPY AND COMP. CRIMINOLOGY 716, 716 (2010) (finding that “[b]ecoming
employed after incarceration, although apparently providing initial motivation to desist from
crime, does not seem to be on its own sufficient to prevent recidivism for many parolees”).
124

See WENDY ERISMAN & JEANNE BAYER CONTARDO, INST. FOR HIGHER EDUC. POLICY,
LEARNING TO REDUCE RECIDIVISM: A 50 STATE ANALYSIS OF POSTSECONDARY CORRECTIONAL
EDUCATION 5 (2005), http://www.ihep.org/assets/files/publications/gl/LearningReduceRecidivism.pdf (finding that increasing higher education for prisoners
enhances their prospects for employment and serves as a cost-effective approach to reducing
recidivism); see also John H. Laud & Robert J. Sampson, Understanding Desistance from
Crime, 28 CRIME & JUST. 1, 17–24 (2001), http://www.ncjrs.gov/pdffiles1/Digitization/192542192549NCJRS.pdf (stating that factors associated with personal rehabilitation and social

44

0047

stability, such as stable employment, family and community involvement, and recovery from
substance abuse, are correlated with a decreased risk of recidivism).
125

Some employers have expressed a greater willingness to hire ex-offenders who have had
an ongoing relationship with third party intermediary agencies that provide supportive services
such as drug testing, referrals for social services, transportation, child care, clothing, and food.
See Amy L. Solomon et al., From Prison to Work: The Employment Dimensions of Prisoner
Reentry, 2004 URBAN INST. 20,
http://www.urban.org/UploadedPDF/411097_From_Prison_to_Work.pdf. These types of
services can help ex-offenders avoid problems that may interfere with their ability to obtain and
maintain employment. Id.; see generally Victoria Kane, Transcript of 7-26-11 Meeting, U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, http://www.eeoc.gov/eeoc/meetings/7-2611/transcript.cfm#kane (last visited April 23, 2012) (describing why employers should partner
with organizations that provide supportive services to ex-offenders).
126

See generally REENTRY MYTHBUSTER! ON FEDERAL BONDING PROGRAM, supra note 16;
Work Opportunity Tax Credit (WOTC), EMP’T & TRAINING ADMIN., U.S. DEP’T OF LABOR,
http://www.doleta.gov/business/incentives/opptax/ (last visited April 3, 2012); Directory of State
Bonding Coordinators, EMP’T & TRAINING ADMIN., U.S. DEP’T OF LABOR,
http://www.doleta.gov/usworkforce/onestop/FBPContact.cfm (last visited April 3, 2012);
Federal Bonding Program - Background, U.S. DEP’T OF LABOR,
http://www.bonds4jobs.com/program-background.html (last visited April 3, 2012); Bureau of
Prisons: UNICOR’s Federal Bonding Program,
http://www.bop.gov/inmate_programs/itb_bonding.jsp (last visited April 3, 2012).
127

This example is loosely based on a study conducted by Alfred Blumstein and Kiminori
Nakamura measuring the risk of recidivism for individuals who have committed burglary,
robbery, or aggravated assault. See Blumstein & Nakamura, supra note 118.

128

42 U.S.C. § 2000e-2(k)(1)(A)(ii), (C). See also Watson v. Fort Worth Bank & Trust, 487
U.S. 977, 998 (1988).

129

See Exec. Order No. 12,067, 3 C.F.R. 206 (1978 Comp.).

130

See 49 U.S.C. §§ 44935(e)(2)(B), 44936(a)(1), (b)(1). The statute mandates a criminal
background check.

131

See 5 U.S.C. § 7371(b) (requiring mandatory removal from employment of law
enforcement officers convicted of felonies).

132

See 42 U.S.C. § 13041(c) (“Any conviction for a sex crime, an offense involving a child
victim, or a drug felony may be grounds for denying employment or for dismissal of an
employee. . . .”).

133

12 U.S.C. § 1829.

45

0048

134

46 U.S.C. § 70105(c).

135

Other jobs and programs subject to federally-imposed restrictions based on criminal
convictions include the business of insurance (18 U.S.C. § 1033(e)), employee benefits employee
(29 U.S.C. § 1111(a)), participation in Medicare and state health care programs (42 U.S.C.
§ 1320a-7(a)–(b)), defense contractor (10 U.S.C. § 2408(a)), prisoner transportation (42 U.S.C.
§ 13726b(b)(1)), and court-imposed occupational restrictions (18 U.S.C. §§ 3563(b)(5),
3583(d)). This list is not meant to be exhaustive.
136

See, e.g., federal statutes governing commercial motor vehicle operator’s licenses (49
U.S.C. § 31310(b)-(h)), locomotive operator licenses (49 U.S.C. § 20135(b)(4)(B)), and
certificates, ratings, and authorizations for pilots, flight instructors, and ground instructors (49
U.S.C. §§ 44709(b)(2), 44710(b), 4711(c); 14 C.F.R. § 61.15).

137

See, e.g., federal statutes governing loan originator licensing/registration (12 U.S.C.
§ 5104(b)(2)), registration of brokers and dealers (15 U.S.C. § 78o(b)(4)(B)), registration of
commodity dealers (7 U.S.C. § 12a(2)(D), (3)(D), (E), (H)), and registration of investment
advisers (15 U.S.C. § 80b-3(e)(2)-(3), (f)).

138

See, e.g., custom broker’s licenses (19 U.S.C. § 1641(d)(1)(B)), export licenses (50
U.S.C. App. § 2410(h)), and arms export (22 U.S.C. § 2778(g)).

139

See, e.g., grain inspector’s licenses (7 U.S.C. § 85), merchant mariner’s documents,
licenses, or certificates of registry (46 U.S.C. § 7503(b)), licenses to import, manufacture, or deal
in explosives or permits to use explosives (18 U.S.C. § 843(d)), and farm labor contractor’s
certificates of registration (29 U.S.C. § 1813(a)(5)). This list of federally-imposed restrictions on
occupational licenses and registrations for individuals with certain criminal convictions is not
meant to be exhaustive. For additional information, please consult the relevant federal agency or
department.
140

See 12 U.S.C. § 1829(a)(1). The statute imposes a ten-year ban for individuals who have
been convicted of certain financial crimes such as corruption involving the receipt of
commissions or gifts for procuring loans (18 U.S.C. § 215), embezzlement or theft by an
officer/employee of a lending, credit, or insurance institution (18 U.S.C § 657), false or
fraudulent statements by an officer/employee of the federal reserve or a depository institution (18
U.S.C. § 1005), or fraud by wire, radio, or television that affects a financial institution (18 U.S.C.
§ 1343), among other crimes. See 12 U.S.C. § 1829(a)(2)(A)(i)(I), (II). Individuals who have
either been convicted of the crimes listed in § 1829(a)(2)(A), or conspiracy to commit those
crimes, will not receive an exception to the application of the 10-year ban from the FDIC. 12
U.S.C. § 1829(a)(2)(A).

141

See FED. DEPOSIT INS. CORP., FDIC STATEMENT OF POLICY FOR SECTION 19 OF THE FDI
ACT, § C, “PROCEDURES” (amended May 13, 2011),
http://www.fdic.gov/regulations/laws/rules/5000-1300.html [hereinafter FDIC POLICY]; see also

46

0049

Statement of Policy, 63 Fed. Reg. 66,177, 66,184 (Dec. 1, 1998); Clarification of Statement of
Policy, 76 Fed. Reg. 28,031 (May 13, 2011) (clarifying the FDIC’s Statement of Policy for
Section 19 of the FDI Act).
“Approval is automatically granted and an application [for a waiver] will not be required
where [an individual who has been convicted of] the covered offense [criminal offenses
involving dishonesty, breach of trust, or money laundering] . . . meets all of the [“de minimis”]
criteria” set forth in the FDIC’s Statement of Policy. FDIC POLICY, supra, § B (5). These
criteria include the following: (1) there is only one conviction or program of record for a covered
offense; (2) the offense was punishable by imprisonment for a term of one year or less and/or a
fine of $1,000 or less, and the individual did not serve time in jail; (3) the conviction or program
was entered at least five years prior to the date an application would otherwise be required; and
(4) the offense did not involve an insured depository institution or insured credit union. Id.
Additionally, an individual’s conviction for writing a “bad” check will be considered a de
minimis offense, even if it involved an insured depository institution or insured credit union, if:
(1) all other requirements of the de minimis offense provisions are met; (2) the aggregate total
face value of the bad or insufficient funds check(s) cited in the conviction was $1000 or less; and
(3) no insured depository institution or insured credit union was a payee on any of the bad or
insufficient funds checks that were the basis of the conviction. Id.
142

See FDIC POLICY, supra note 141, § C, “PROCEDURES.”

143

Id. But cf. NAT’L H.I.R.E. NETWORK, PEOPLE WITH CRIMINAL RECORDS WORKING IN
FINANCIAL INSTITUTIONS: THE RULES ON FDIC WAIVERS,
http://www.hirenetwork.org/FDIC.html (“Institutions rarely seek a waiver, except for higher
level positions when the candidate is someone the institution wants to hire. Individuals can only
seek FDIC approval themselves if they ask the FDIC to waive the usual requirement. Most
individuals probably are unaware that they have this right.”); FED. DEPOSIT INSUR. CORP. 2010
ANNUAL REPORT, § VI.A: KEY STATISTICS, FDIC ACTIONS ON FINANCIAL INSTITUTION
APPLICATIONS 2008–2010 (2011),
http://www.fdic.gov/about/strategic/report/2010annualreport/chpt6-01.html (reporting that
between 2008 and 2010, the FDIC approved a total of 38 requests for consent to employ
individuals with covered offenses in their background; the agency did not deny any requests
during this time period).
144

FDIC POLICY, supra note 141, § D, “EVALUATION OF SECTION 19 APPLICATIONS” (listing
the factors that are considered in this waiver review process, which include: (1) the nature and
circumstances underlying the offense; (2) “[e]vidence of rehabilitation including the person’s
reputation since the conviction . . . the person’s age at the time of conviction . . . and the time
which has elapsed since the conviction”; (3) the position to be held in the insured institution; (4)
the amount of influence/control the individual will be able to exercise over management affairs;
(5) management’s ability to control and supervise the individual’s activities; (6) the degree of
ownership the individual will have in the insured institution; (7) whether the institution’s fidelity
bond coverage applies to the individual; (8) the opinion of the applicable federal and/or state
regulators; and (9) any other relevant factors).

47

0050

145

See 49 C.F.R. §§ 1515.7 (describing the procedures for waiver of criminal offenses,
among other standards), 1515.5 (explaining how to appeal the Initial Determination of Threat
Assessment based on a criminal conviction). In practice, some worker advocacy groups have
criticized the TWIC appeal process due to prolonged delays, which leaves many workers jobless;
especially workers of color. See generally MAURICE EMSELLEM ET AL., NAT’L EMP’T LAW
PROJECT, A SCORECARD ON THE POST-911 PORT WORKER BACKGROUND CHECKS: MODEL
WORKER PROTECTIONS PROVIDE A LIFELINE FOR PEOPLE OF COLOR, WHILE MAJOR TSA DELAYS
LEAVE THOUSANDS JOBLESS DURING THE RECESSION (2009),
http://nelp.3cdn.net/2d5508b4cec6e13da6_upm6b20e5.pdf.
The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, § 6201, 124 Stat.
721 (2010) (the Act) includes a process to appeal or dispute the accuracy of information obtained
from criminal records. The Act requires participating states to perform background checks on
applicants and current employees who have direct access to patients in long-term care facilities,
such as nursing homes, to determine if they have been convicted of an offense or have other
disqualifying information in their background, such as a finding of patient or resident abuse, that
would disqualify them from employment under the Social Security Act or as specified by state
law. See 42 U.S.C. § 1320a-7l(a)(3)(A), (a)(4)(B), (6)(A)–(E). The background check involves
an individualized assessment of the relevance of a conviction or other disqualifying information.
The Act protects applicants and employees in several ways, for example, by: (1) providing a 60day provisional period of employment for the prospective employee, pending the completion of
the criminal records check; (2) providing an independent process to appeal or dispute the
accuracy of the information obtained in the criminal records check; and (3) allowing the
employee to remain employed (subject to direct on-site supervision) during the appeals process.
42 U.S.C. § 1320a-7l(a)(4)(B)(iii), (iv).
146

See 46 U.S.C. § 70105(d); see generally TWIC Program, 49 C.F.R. § 1572.103 (listing
the disqualifying offenses for maritime and land transportation security credentials, such as
convictions and findings of not guilty by reason of insanity for espionage, murder, or unlawful
possession of an explosive; also listing temporarily disqualifying offenses, within seven years of
conviction or five years of release from incarceration, including dishonesty, fraud, or
misrepresentation (expressly excluding welfare fraud and passing bad checks), firearms
violations, and distribution, intent to distribute, or importation of controlled substances).

147

46 U.S.C. § 70105(c)(1)(A)–(B).

148

46 U.S.C. § 70105(c)(1)(B)(iii).

149

See 46 U.S.C. § 70105(c)(1)(A)(iv) (listing “Federal crime of terrorism” as a permanent
disqualifying offense); see also 18 U.S.C. § 2332b(g)(5)(B) (defining “Federal crime of
terrorism” to include the use of weapons of mass destruction under § 2332a).

150

See 49 C.F.R. § 1515.7(a)(i) (explaining that only certain applicants with disqualifying
crimes in their backgrounds may apply for a waiver; these applicants do not include individuals

48

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who have been convicted of a Federal crime of terrorism as defined by 18 U.S.C. § 2332b(g)).
151

These positions are defined as “national security positions” and include positions that
“involve activities of the Government that are concerned with the protection of the nation from
foreign aggression or espionage, including development of defense plans or policies, intelligence
or counterintelligence activities, and related activities concerned with the preservation of the
military strength of the United States” or “require regular use of, or access to, classified
information.” 5 C.F.R. § 732.102(a)(1)–(2). The requirements for “national security positions”
apply to competitive service positions, Senior Executive Service positions filled by career
appointment within the Executive Branch, and excepted service positions within the Executive
Branch. Id. § 732.102(b). The head of each Federal agency can designate any position within
that department or agency as a “sensitive position” if the position “could bring about, by virtue
of the nature of the position, a material adverse effect on the national security.” Id. § 732.201(a).
Designation of a position as a “sensitive position” will fall under one of three sensitivity levels:
Special-Sensitive, Critical-Sensitive, or Noncritical-Sensitive. Id.
152

See Exec. Order No. 12,968, § 3.1(b), 3 C.F.R. 391 (1995 Comp.):
[E]ligibility for access to classified information shall be granted only to
employees who are United States citizens for whom an appropriate
investigation has been completed and whose personal and professional
history affirmatively indicates loyalty to the United States, strength of
character, trustworthiness, honestly, reliability, discretion, and sound
judgment, as well as freedom from conflicting allegiances and potential
for coercion, and willingness and ability to abide by regulations governing
the use, handling, and protection of classified information. A
determination of eligibility for access to such information is a
discretionary security decision based on judgments by appropriately
trained adjudicative personnel. Eligibility shall be granted only where
facts and circumstances indicate access to classified information is clearly
consistent with the national security interests of the United States, and any
doubt shall be resolved in favor of the national security.

153

42 U.S.C. § 2000e-2(g); see, e.g., Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C. Cir.
2005) (“[E]mployment actions based on denial of a security clearance are not subject to judicial
review, including under Title VII.”); Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (“[A]n
adverse employment action based on denial or revocation of a security clearance is not
actionable under Title VII.”).
154

See Policy Guidance on the use of the national security exception contained in § 703(g)
of Title VII of the Civil Rights Act of 1964, as amended, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, § II, Legislative History (May 1, 1989),
http://www.eeoc.gov/policy/docs/national_security_exemption.html (“[N]ational security
requirements must be applied equally without regard to race, sex, color, religion or national
origin.”); see also Jones v. Ashcroft, 321 F. Supp. 2d 1, 8 (D.D.C. 2004) (indicating that the

49

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national security exception did not apply because there was no evidence that the government
considered national security as a basis for its decision not to hire the plaintiff at any time before
the commencement of the plaintiff’s lawsuit, where the plaintiff had not been forthright about an
arrest).
155

Federal contractor employees may challenge the denial of a security clearance with the
EEOC or the Office of Contract Compliance Programs when the denial is based on race, color,
religion, sex, or national origin. See generally Exec. Order No. 11,246, 3 C.F.R. 339 (1964–1965
Comp.).
156

42 U.S.C. § 2000e-16(a).

157

Robert H. Shriver, III, Written Testimony of Robert H. Shriver, III, Senior Policy Counsel
for the U.S. Office of Personnel Management, U.S. EQUAL EMP’T OPPORTUNITY COMM’N,
http://www.eeoc.gov/eeoc/meetings/7-26-11/shriver.cfm (last visited April 23, 2012) (stating
that “with just a few exceptions, criminal convictions do not automatically disqualify an
applicant from employment in the competitive civil service”); see also REENTRY MYTHBUSTER!
ON FEDERAL HIRING POLICIES, supra note 16 (“The Federal Government employs people with
criminal records with the requisite knowledge, skills and abilities.”). But see supra note 110,
listing several federal statutes that prohibit individuals with certain convictions from working as
federal law enforcement officers or port workers, or with private prisoner transport companies.
158

OPM has jurisdiction to establish the federal government’s suitability policy for
competitive service positions, certain excepted service positions, and career appointments in the
Senior Executive Service. See 5 C.F.R. §§ 731.101(a) (stating that OPM has been directed “to
examine ‘suitability’ for competitive Federal employment”), 731.101(b) (defining the covered
positions within OPM’s jurisdiction); see also Shriver, supra note 157.

OPM is also responsible for establishing standards that help agencies decide whether to
grant their employees and contractor personnel long-term access to federal facilities and
information systems. See Homeland Security Presidential Directive 12: Policy for a Common
Identification Standard for Federal Employees and Contractors, 2 PUB. PAPERS 1765 (Aug. 27,
2004) (“establishing a mandatory, Government-wide standard for secure and reliable forms of
identification issued by the Federal Government to its employees and contractors [including
contractor employees]”); see also Exec. Order No. 13,467, § 2.3(b), 3 C.F.R. 196 (2009 Comp.)
(“[T]he Director of [OPM] . . . [is] responsible for developing and implementing uniform and
consistent policies and procedures to ensure the effective, efficient, and timely completion of
investigations and adjudications relating to determinations of suitability and eligibility for logical
and physical access.”); see generally Shriver, supra note 157.
159

5 C.F.R. § 731.101(a).

160

See 5 C.F.R. §§ 731.205(a) (stating that if an agency finds applicants unsuitable based on
the factors listed in 5 C.F.R. § 731.202, it may, in its discretion, bar those applicants from federal
employment for three years), § 731.202(b) (disqualifying factors from federal civilian

50

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employment may include: misconduct or negligence in employment; material, intentional false
statement, or deception or fraud in examination or appointment; refusal to furnish testimony as
required by 5 C.F.R. § 5.4; alcohol abuse without evidence of substantial rehabilitation; illegal
use of narcotics, drugs, or other controlled substances; and knowing and willful engagement in
acts or activities designed to overthrow the U.S. Government by force).
161

See id. § 731.202(c).

162

Id.

163

See generally Shriver, supra note 157. See also REENTRY MYTHBUSTER! ON FEDERAL
HIRING POLICIES, supra note 16 (“Consistent with Merit System Principles, [federal] agencies
[and departments] are required to consider people with criminal records when filling positions if
they are the best candidates and can comply with requirements.”).
164

See generally EEOC Informal Discussion Letter (March 19, 2007),
http://www.eeoc.gov/eeoc/foia/letters/2007/arrest_and_conviction_records.html#N1 (discussing
the EEOC’s concerns with changes to OPM’s suitability regulations at 5 CFR part 731).
165

See Stephen Saltzburg, Transcript of 7-26-11 Meeting, U.S. EQUAL EMP’T OPPORTUNITY
COMM’N, http://www.eeoc.gov/eeoc/meetings/7-26-11/transcript.cfm#saltzburg (last visited
April 23, 2012) (discussing the findings from the American Bar Association’s (ABA) Collateral
Consequences of Conviction Project, which found that in 17 states that it has examined to date,
84% of the collateral sanctions against ex-offenders relate to employment). For more
information about the ABA’s project, visit: Janet Levine, ABA Criminal Justice Section
Collateral Consequences Project, INST. FOR SURVEY RESEARCH, TEMPLE UNIV.,
http://isrweb.isr.temple.edu/projects/accproject/ (last visited April 20, 2012). In April 2011,
Attorney General Holder sent a letter to every state Attorney General, with a copy to every
Governor, asking them to “evaluate the collateral consequences” of criminal convictions in their
state, such as employment-related restrictions on ex-offenders, and “to determine whether those
[consequences] that impose burdens on individuals . . . without increasing public safety should
be eliminated.” Letter from Eric H. Holder, Jr., Att’y Gen., Dep’t of Justice, to state Attorney
Generals and Governors (April 18, 2011),
http://www.nationalreentryresourcecenter.org/documents/0000/1088/Reentry_Council_AG_Lett
er.pdf.
Most states regulate occupations that involve responsibility for vulnerable citizens such
as the elderly and children. See STATE CRIMINAL HISTORY, supra note 37, at 10 (“Fifty states and
the District of Columbia reported that criminal history background checks are legally required”
for several occupations such as nurses/elder caregivers, daycare providers, caregivers in
residential facilities, school teachers, and nonteaching school employees). For example,
Hawaii’s Department of Human Services may deny applicants licensing privileges to operate a
childcare facility if: (1) the applicant or any prospective employee has been convicted of a crime
other than a minor traffic violation or has been confirmed to have abused or neglected a child or
threatened harm; and (2) the department finds that the criminal history or child abuse record of

51

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the applicant or prospective employee may pose a risk to the health, safety, or well-being of
children. See HAW. REV. STAT. § 346-154(e)(1)–(2).
166

42 U.S.C. § 2000e-7.

167

See Int’l Union v. Johnson Controls, Inc., 499 U.S. 187, 210 (1991) (noting that “[i]f
state tort law furthers discrimination in the workplace and prevents employers from hiring
women who are capable of manufacturing the product as efficiently as men, then it will impede
the accomplishment of Congress’ goals in enacting Title VII”); Gulino v. N.Y. State Educ.
Dep’t, 460 F.3d 361, 380 (2d Cir. 2006) (affirming the district court’s conclusion that “the
mandates of state law are no defense to Title VII liability”).

52

0055

Number
DIRECTIVES TRANSMITTAL

915.003

EEOC

Date
4/19/06

SUBJECT:

EEOC COMPLIANCE MANUAL

PURPOSE:

This transmittal covers the issuance of Section 15 of the new Compliance
Manual, on “Race and Color Discrimination.” The Manual Section
provides guidance on analyzing charges of race and color discrimination
under Title VII of the Civil Rights Act of 1964.

ORIGINATOR:

Office of Legal Counsel, Title VII/ADEA/EPA Division

EFFECTIVE
DATE:

Upon receipt

DISTRIBUTION:

EEOC Compliance Manual holders

/S/
Cari M. Dominguez
Chair

0056

SECTION 15: RACE and COLOR DISCRIMINATION
TABLE OF CONTENTS
15-I OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
15-II WHAT IS “RACE” DISCRIMINATION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
15-III WHAT IS “COLOR” DISCRIMINATION? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
15-IV RELATED PROTECTED BASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
NATIONAL ORIGIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
RELIGION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
INTERSECTIONAL DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7
8
8
8

15-V EVALUATING EMPLOYMENT DECISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A.
RACIAL DISPARATE TREATMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1.
Recognizing Racial Motive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2.
Conducting a Thorough Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
•
Potential Evidence of Racial Disparate Treatment
•
Employer Credibility
3.
Recognizing “Pattern or Practice” Race Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
B.
RACIAL DISPARATE IMPACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
15-VI EQUAL ACCESS TO JOBS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
RECRUITING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Job Advertisements and Employment Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Word-of-Mouth Referrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Homogeneous Recruitment Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Discriminatory Screening of Recruits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
HIRING AND PROMOTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Uniform and Consistently Applied Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Job-Related Standards, Consistent with Business Necessity . . . . . . . . . . . . . . . . . . . . . . . . .
•
Education Requirements
•
Employment Testing
•
Conviction and Arrest Records
C.
DIVERSITY AND AFFIRMATIVE ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15-VII EQUAL OPPORTUNITY FOR JOB SUCCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
RACIAL HARASSMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Unwelcome Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Severe or Pervasive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Employer Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
•
Conduct of Supervisors
•
Conduct of Owner, President, Partners, or Officers
•
Conduct of Co-workers and Non-employees
B.
RACIAL BIAS IN OTHER EMPLOYMENT TERMS AND CONDITIONS . . . . . . . . . . . . . . . . . . .
1.
Work Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Performance Evaluations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Training and Constructive Feedback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4.
Workplace Networks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5.
Appearance and Grooming Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6.
Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7.
Discipline and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
RETALIATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

22
22
23
23
24
24
25
25
27

31
35
35
36
36
41

44
44
45
46
47
47
49
50
51

15-VIII REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
15-IX L PROACTIVE PREVENTION7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

0057

SECTION 15: RACE and COLOR DISCRIMINATION
15-I OVERVIEW
With the enactment of the Civil Rights Act of 1964, Congress sought to eliminate the
problems of segregation and discrimination in the United States. The impetus for the Act was the
civil rights movement of the 1950s and 1960s, which challenged the denial of the right of Blacks
to participate equally in society.
The employment title of the Act — Title VII — covers employment discrimination based
on race, color, religion, sex, national origin, or protected activity. Title VII’s prohibitions against
race and color discrimination were aimed at ending a system in which Blacks were “largely
relegated to unskilled and semi-skilled jobs.”1 However, Congress drafted the statute broadly to
cover race or color discrimination against anyone – Whites, Blacks, Asians, Latinos, Arabs,
American Indians and Alaska Natives, Native Hawaiians and Pacific Islanders, persons of more than
one race, and all other persons.2
Today, the national policy of nondiscrimination is firmly rooted in the law.3 In addition, it
generally is agreed that equal opportunity has increased dramatically in America, including in
employment. Blacks and other people of color now work in virtually every field, and opportunities
are increasing at every level.
Yet significant work remains to be done. Charges alleging race discrimination in
employment accounted for 35.5 percent of the Commission’s 2005 charge receipts, making race still
the most-alleged basis of employment discrimination under federal law.4 In addition, several private
studies conducted in the early 2000s provide telling evidence that race discrimination in
employment persists. A 2003 study in Milwaukee found that Whites with a criminal record received
job call-backs at a rate more than three times that of Blacks with the same criminal record, and even

1

See United Steelworkers of America v. Weber, 443 U.S. 193, 202-03 (1979) (also noting: the
1962 unemploym ent rate of B lacks and other people of color w as 124 percent higher than that of W hites).
2

The following terms are used interchangeably in this document due to their frequent and
accepted vernacular usage: “Black” and “African American”; “White” and “Caucasian”; “Asian” and “Asian
American”; “American Indian” and “Native American”; and “Latino” and “Hispanic.” The document will
refer to non-W hites generally as “people of color.”
3

See Franks v. Bowman T ransp. Co., Inc., 424 U.S. 747, 763 (1976) (“Congress intended to
prohibit all practices in whatever form which create ineq uality in employ ment opportunity due to
discrimination [prohibited by Title VII] . . . and ordained that its policy of outlawing such discrimination
should have the highest priority.”) (citations om itted). For a go od discussion of the history of Title VII
enfo rcem ent, see CELEBRATING THE 4 0 TH A NNIVERSARY OF T ITLE VII (2004), at
http://w ww .eeoc.gov/abouteeoc/40th/p anel/; and T HE S TORY OF T HE U NITED S TATES E QUAL E MPLOYMENT
O PPORTUNITY C OMMISSION: E NSURING THE P ROMISE OF O PPORTUNITY FOR 35 Y EARS (2000), available at
http://www.eeoc.gov/abouteeoc/35th/index.html.
4

See EEOC Charge Statistics, at http://www.eeoc.gov/stats/charges.html.

0058

at a rate higher than Blacks without a criminal record.5 A 2003 study in California found that
temporary agencies preferred White applicants three to one over African American applicants.6
And, a 2002 study in Boston and Chicago found that résumés of persons with names common
among Whites were 50 percent more likely to generate a request for an interview than equally
impressive résumés of persons with names common among Blacks.7
Moreover, racial and ethnic disparities still exist in the labor market. People of color are
more likely than Whites to work in lower-paying jobs and less likely to work in higher-paying jobs.8
Unlawful employment discrimination is one of the reasons for these disparities. Therefore,
vigorous law enforcement, and proactive prevention of discrimination – i.e., enhanced outreach,
education, and technical assistance to promote voluntary compliance – remain critical to ensuring
that race and color play no part in employment decisions.

5

See Devah Pager, The M ark of a Criminal Record, A MERICAN J OURNAL OF S OCIOLOGY (Mar.
2003) (audit study sending matched pairs of Black and White male college students w ith similar selfpresentation styles to apply for 350 low-skilled jobs advertised in the Milwaukee classifieds; purpose w as to
test the degree to w hich a criminal record affects subsequ ent em ploy ment opportunities; study found that
when the White “testers” were assigned a fake 18-month prison record – for po ssessio n of cocaine w ith intent
to sell – they w ere called back by employers 17% of the tim e, while the Black testers assigned the same
record were called back only 5% of the tim e; W hites w ithou t a criminal record had a 34% call back rate
versus a 14% call back rate for Blacks withou t a crim inal re cord ), available at
http://www.northwestern.edu/ipr/publications/papers/2003/pagerajs.pdf.
6

See Jenny Bussey and John Trasviña, Racial Preferences: The Treatment of White and
African Am erican Job Applicants by Temporary E mploym ent Agencies in California, at
http://www.impactfund.org/DRC%20D ecember%202003%20Report.pdf (Dec. 2003) (audit study sending
specially trained matched pairs of White and Black job applicants to temporary agencies to determine whether
one applicant received better treatment in one way or another, such as in obtaining an interv iew or job offer,
higher pay, or longer job assignment; study found that the temporary agencies audited in Los Angeles
preferred the White applicants 4 to 1 over the African American applicants, and more than 2 to 1 in San
Francisco).
7

See Marianne B ertrand and Sendh il Mullainathan, Are Emily and Brendan More Employable
than Lakisha an d Jam al?
A Field Experiment on Labor M arket Discrimination, at
http://gsb.uchicago.edu/pdf/bertrand.pdf (Nov. 18, 2002) (after randomly assigning names common among
Wh ites or Blacks to résumés of similar quality, Professors Bertrand and Mullainathan responded to over 1300
job advertisements in Boston and Chicago, and found that the hypothetical White applicants were 50 percent
more likely to receive responses seeking interviews than the hypothetical Black applicants; moreover, the
study revealed that improvements in résumé quality significantly increased the chances for a callback for
Whites but did not sign ificantly increase the chances for Blacks).
8

See generally the Census 2000 Special EEO T abulation (Em ploymen t by EEO -1 Job
Categories), available at http://www.census.gov/eeo2000/index.html.

15-2

0059

The purpose of this Manual Section is to provide guidance on Title VII’s prohibition against
workplace discrimination based on race or color.9 It discusses coverage issues, the importance of
conducting a thorough investigation, various employer practices, and remedies for a violation.10 The
Manual Section includes numerous examples, as well as guidance reflecting the Commission’s
strong interest in proactive prevention and “best practices.”11

15-II WHAT IS “RACE” DISCRIMINATION?
Title VII prohibits employer actions that discriminate, by motivation or impact, against
persons because of race. Title VII does not contain a definition of “race,” nor has the Commission
adopted one. For the collection of federal data on race and ethnicity, the Office of Management and
Budget (OMB) has provided the following five racial categories: American Indian or Alaska
Native; Asian; Black or African American; Native Hawaiian or Other Pacific Islander; and White;
and one ethnicity category, Hispanic or Latino.12 OMB has made clear that these categories are
“social-political constructs . . . and should not be interpreted as being genetic, biological, or
anthropological in nature.”13

9

Section 1981 of the Civil Rights A ct of 1866 – 42 U.S.C. § 1981 – also provides a federal
remedy for race discrimination in em ploy ment. Section 1981 prohibits race discrimination in the making and
enforcing of contracts, which includes, but is not limited to, most employm ent relationsh ips. While Title VII
provides that private employers must have 15 or more employees to be cov ered, Section 1981 covers
employers with any number of employees. The EEOC does not enforce Section 1981.
10

The analysis in this Section generally applies to private, state and local, and federal sector
com plaints of race or color discrim ination under T itle VII. Moreover, while this document focuses on
discrimination by employers, Title VII also prohibits discriminatory practices by labor organizations,
including union membership and representation, and em ploym ent agencies, including referral practices.
11

Best practices are proactive measures designed to reduce the likelihood of Title VII violations
and to address impediments to equal employment opportunity. A comprehensive overview of best practices
is presented in the 1998 report “‘B est’ Equal Em ploy ment Oppo rtunity Policies, Program s, and Practices in
the Private Sector,” which was prepared by an EEOC task force headed by former Comm issioner Reginald
E. Jones. See E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION , “B EST ” E QUAL E MPLOYMENT O PPOR TUN ITY
P OLICIES, P ROGRAMS, AND P RACTICES IN THE P RIVATE S ECTOR (2d ed. 1998). According to the rep ort, a
“best practice”: complies with the law; promotes equal employment opportunity; shows management
commitment and accountability; ensures management and employee communication; produces noteworthy
results; and doe s no t result in un fairness.
The complete report is available at
http://www.eeoc.gov/abouteeoc/task_reports/practice.html.
12

See O FFICE OF M ANAGEMENT AND B UDGET , P ROVISIONAL G UIDANCE ON THE
I MPLEMENTATION OF THE 1997 S TANDARDS FOR F EDERAL D ATA ON R ACE AND E THNICITY 6-7 (12/15/00).
13

See id. 9-10.

15-3

0060

Title VII’s prohibition of race discrimination generally encompasses:
!

Ancestry: Employment discrimination because of racial or ethnic ancestry.
Discrimination against a person because of his or her ancestry can violate Title VII’s
prohibition against race discrimination. Note that there can be considerable overlap
between “race” and “national origin,” but they are not identical.14 For example,
discrimination against a Chinese American might be targeted at her Asian ancestry
and not her Chinese national origin. In that case, she would have a claim of
discrimination based on race, not national origin.

!

Physical Characteristics: Employment discrimination based on a person’s physical
characteristics associated with race, such as a person’s color, hair, facial features,
height and weight.15

!

Race-linked Illness: Discrimination based on race-linked illnesses. For example,
sickle cell anemia is a genetically-transmitted disease that affects primarily persons
of African descent. Other diseases, while not linked directly to race or ethnicity,
may nevertheless have a disproportionate impact. For example, Native Hawaiians
have a disproportionately high incidence of diabetes.16 If the employer applies
facially neutral standards to exclude treatment for conditions or risks that
disproportionately affect employees on the basis of race or ethnicity, the employer
must show that the standards are based on generally accepted medical criteria.17

!

Culture: Employment discrimination because of cultural characteristics related to
race or ethnicity. Title VII prohibits employment discrimination against a person
because of cultural characteristics often linked to race or ethnicity, such as a person’s
name,18 cultural dress and grooming practices,19 or accent or manner of speech. For
example, an employment decision based on a person having a so-called “Black
accent,” or “sounding White,” violates Title VII if the accent or manner of speech
does not materially interfere with the ability to perform job duties.

14

See also § 15-IV.A ., infra.

15

See also § 15-V II.B.5, infra, on App earance and G rooming Standards.

16

See Centers for Disease C ontrol and Prevention Fact
http://w ww .cdc.gov/o d/oc/media/pressrel/fs04040 2.htm (last visited 11/30/05).

Sheet,

available

at

17

See Section 3: Em ployee Benefits, EEOC Comp liance Manual, Title VII/E PA Issues § II.B .,
available at http://www.eeoc.gov/policy/docs/benefits.html.
18

See supra note 7; cf. El-Hakem v. BJY, Inc., 415 F.3d 1068, 1073 (9th Cir. 2005) (“names
are often a proxy for race and ethnicity”).
19

See also § 15-V II.B.5, infra, on App earance and G rooming Standards.

15-4

0061

!

Perception: Employment discrimination against an individual based on a belief that
the individual is a member of a particular racial group, regardless of how the
individual identifies himself. Discrimination against an individual based on a
perception of his or her race violates Title VII even if that perception is wrong.

!

Association: Employment discrimination against an individual because of his/her
association with someone of a particular race. For example, it is unlawful to
discriminate against a White person because he or she is married to an African
American or has a multiracial child,20 or because he or she maintains friendships or
otherwise associates with persons of a certain race.

!

Subgroup or “Race Plus”: Title VII prohibits discrimination against a subgroup
of persons in a racial group because they have certain attributes in addition to their
race. Thus, for example, it would violate Title VII for an employer to reject Black
women with preschool age children, while not rejecting other women with preschool
age children.21

!

“Reverse” Race Discrimination: Title VII prohibits race discrimination against all
persons, including Caucasians.22 A plaintiff may prove a claim of discrimination
through direct or circumstantial evidence. Some courts, however, take the position
that if a White person relies on circumstantial evidence to establish a reverse
discrimination claim, he or she must meet a heightened standard of proof.23 The

20

See Tetro v. Elliott Popha m P ontia c, Oldsm obile, Buick, & GMC Trucks, Inc., 173 F.3d 988,
994-95 (6th Cir. 1999) (holding employee stated a claim under Title VII when he alleged that company ow ner
discriminated against him after his biracial child visited him at work: “A white employee who is discharged
because his child is biracial is discriminated against on the basis of his race, even though the root animus for
the discrimination is a prejudice against the biracial child” because “the essence of the alleged discrimination
. . . is the con trast in races.”).
21

Cf. Phillips v. Martin Marietta Corp., 400 U.S. 542, 544 (1971) (holding that an emp loyer’s
refusal to hire a subgroup of wo men – those with preschool-age ch ildren – w as sex-based).
22

See McDona ld v. Santa Fe Trail Transp. Co., 427 U.S. 273, 280 (197 6) (Title VII prohibits
race discrim ination ag ainst all person s, including Whites).
23

See, e.g., Mattioda v. White, 323 F.3d 1288 (10 th Cir. 2003 ) (Caucasian plaintiff failed to
establish prima facie case because he did not present “background circumstances that support an inference
that the defendant is one of those unusual employers who discrim inates again st the m ajority”); Phelan v. City
of Chicago, 347 F.3d 679, 684-85 (7th Cir. 2003) (in cases of reverse race discrimination, White employee
must show background circumstances dem onstrating that particular employ er has reaso n or inclinatio n to
discrim inate invidiously against w hites or evidence that there is som ething “fishy” ab out facts at hand);
Gagnon v. Sprint Corp., 284 F.3d 839, 848 (8th Cir. 2002) (in a Title VII claim of reverse race discrimination,
employee must show that defendant is that unusual employer who discrim inates again st the m ajority, but if
the employ ee fails to make this showing, he may still proceed by producing direct evidence of

15-5

0062

Commission, in contrast, applies the same standard of proof to all race
discrimination claims, regardless of the victim’s race or the type of evidence used.24
In either case, the ultimate burden of persuasion remains always on the plaintiff. 25

15-III WHAT IS “COLOR” DISCRIMINATION?
Title VII prohibits employment discrimination because of “color” as a basis separately listed
in the statute. The statute does not define “color.” The courts and the Commission read “color” to
have its commonly understood meaning – pigmentation, complexion, or skin shade or tone. Thus,
color discrimination occurs when a person is discriminated against based on the lightness, darkness,
or other color characteristic of the person. Even though race and color clearly overlap, they are not
synonymous.26 Thus, color discrimination can occur between persons of different races or
ethnicities, or between persons of the same race or ethnicity. 27
EXAMPLE 1
COLOR-BASED HARASSMENT
James, a light-complexioned African American, has worked as a
waiter at a restaurant for over a year. His manager, a browncomplexioned African American, has frequently made offensive
comments and jokes about James’s skin color, causing him to lose
sleep and dread coming in to work. James’s requests that the conduct
stop only intensified the abuse. James has been subjected to

discrimination). But see, e.g., Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir.1999) (rejecting heightened
“background circumstances” standard); Lucas v. Dole, 835 F.2d 532, 533-34 (4th C ir. 1987) (declining to
decide whether a “higher prima facie burden” applies in reverse discrimination cases).
24

See McDonald , 427 U.S. at 280 (“Title VII prohibits racial discrimination against the white
petitioners in this case upon the same standards as would be applicable were they Negroes”) (emphasis
added).
25

Reeves v. Sand erson Plumbing Prods., Inc., 530 U.S. 133, 143 (200 0).

26

See Walker v. Secretary of the Treasury, IRS, 713 F. Su pp. 4 03, 405-08 (N.D. Ga. 1989)
(discrimination based on color not necessarily the same as race; cause of action available for suit by light
skinned Black person again st a dark skinned Black person), aff’d 953 F.2d 650 (11th Cir. 1992 ); cf. Rodriguez
v. Guttuso, 795 F. Supp. 860, 865 (N.D. Ill. 1992) (Fair Housing claim succeeded on statutory ground of
“color” discrimination w here light-complexioned Latino defendant refused to rent to Latino couple because
husband w as a dark-complexion ed Latino).
27

See Santiago v. Stryker Corp., 10 F. Supp. 2d 93, 96 (D.P.R. 1998) (holding darkcomplexioned Puerto Rican citizen replaced by light-complexioned Puerto Rican citizen could establish a
prima facie case of “color” discrimination (qu oting , with approval, Felix v. Marquez, 24 EPD ¶ 31,279
(D.D.C.198 0): “‘Color may be a rare claim, because color is usually mixed with or subordinated to claims
of race discrimination, but considering the mixture of races and ancestral national origins in Puerto Rico,
color m ay be the mo st practical claim to present.’”)).

15-6

0063

harassment in the form of a hostile work environment, based on his
color. (See § 15-VII.A. for a discussion of harassment.)
EXAMPLE 2
COLOR-BASED EMPLOYMENT DECISIONS
Melanie, a brown-complexioned Latina, works as a sales clerk for a
major department store. She applies for a promotion to be the
Counter Manager for a major line of beauty products, but the
employer denies her the promotion because the vendor prefers a
“light skinned representative” to manage its product line at this
particular location. The employer has unlawfully discriminated on
the basis of color.
Throughout the remainder of this Manual Section, the term “race,” rather than “color,”
generally is used. This is done for stylistic reasons, as well as to reflect that many more race claims
are made each year than color claims. However, the same analyses apply to both race and color.

15-IV RELATED PROTECTED BASES
Multiple protected bases of discrimination can be raised by the same set of facts, both
because negative stereotypes and biases may be directed at more than one protected basis at a time,
and because certain protected bases overlap considerably. Thus, for example, a discrimination
complaint by an “Asian Indian” can implicate race, color, and national origin,28 as can, for example,
a complaint by a Black person from an African nation, or by a dark-skinned Latino. For Title VII
purposes, the question is whether any prohibited factors led to an adverse employment action, alone
or combined.
All bases of discrimination that are reasonably implicated by the facts should be included
in the charge or complaint (e.g., race, color, national origin, religion, sex, etc.). Failure to include
all possible bases may result in a court dismissing a legitimate claim.29

28

See, e.g., Dixit v. City of New York Dep’t of General Servs., 972 F. Supp. 730, 735 (S.D.N.Y.
1997) (holding that a charge that alleged discrimination on the basis of being “Asian Indian” sufficed to raise
both race and national origin because E EO C could reasonably be expected to investigate both).
29

Although a lawsuit can encom pass any claim that can reasonably be expected to flow from
the charge of discrimination, some courts narrowly construe what can reasonably be expected to flow.
Compare, e.g., Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124 (4th Cir. 2002) (plaintiff whose charge alleged
only race discrimination could not later bring suit based on, inter alia, color) with, e.g., Deravin v. Kerik, 335
F.3d 195 (2d Cir. 2003) (African American who checked “national origin” in his charge, alleging preferential
treatment of Irish Am ericans, cou ld bring subseq uent law suit based on race).

15-7

0064

A.

NATIONAL ORIGIN

In forbidding “national origin” discrimination, Title VII prohibits the denial of equal
employment opportunity because of the place of origin of an individual or his or her ancestors, or
because an individual has the physical, cultural, or linguistic characteristics of a national origin
group. National origin and race often overlap because persons who themselves are, or whose
ancestors were, of the same national origin frequently are of the same race.30 The overlap between
race and national origin is particularly clear in the case of Asian Americans.31 For a thorough
discussion of national origin discrimination, see Section 13: National Origin Discrimination
(2002), available at http://www.eeoc.gov/policy/docs/national-origin.html, and see Guidelines on
Discrimination Because of National Origin, at 29 C.F.R. § 1606.1.
B.

RELIGION

Title VII’s prohibition against race discrimination also may overlap with its prohibition
against discrimination based on religion. Both race and religion might be implicated where, for
example, an employer discriminates against an employee based on the employee’s belief in a
religion tied to a particular race or ethnicity (e.g., Hinduism/Asians).
C.

INTERSECTIONAL DISCRIMINATION

Title VII prohibits discrimination not just because of one protected trait (e.g., race), but also
because of the intersection of two or more protected bases (e.g., race and sex). For example, Title
VII prohibits discrimination against African American women even if the employer does not
discriminate against White women or African American men.32 Likewise, Title VII protects Asian
30

Cf. St. Francis College v. Al-Khazraji, 481 U.S. 604, 614 (198 7) (Brennan, J., concurring)
(noting that, according to EEOC’s definition of “nation al origin” at 29 C.F.R. § 1606.1, “in the Title VII
context, the terms [race and national origin] overlap as a legal matter,” and reading the majority opinion to
state only that § 1981 does not cover discrimination where the two do not overlap, i.e., where the
discrimination is based on “birthplace alone,” which is purely national origin); Perkins v. Lake Cou nty Dep’t
of Utils., 860 F. Supp. 1262, 1272-73 (N.D. Ohio 1994) (listing the § 1981 cases in which courts engaged in
what it called “mental gymnastics” to define “race” an d to distinguish it from national origin).
31

Race and national origin also clearly overlap with respect to American Indians, because they
often are perceived in racial terms and they originate from tribes that “were at one time considered to be
nations by both the colonizing countries and later the United States.” Dawa vendewa v. Salt River Project
Agric. Improvement and Powers D istr., 154 F.3d 1117, 1119-20 (9 th Cir. 1998). Thus, an allegation that an
employer discriminated against an American Indian may be analyzed as either race discrimination or national
origin discrim ination. See Perkins, 860 F. Su pp. at 1273 n.7 (noting that courts have analyzed discrimination
against A merican Indians in terms of both national origin and race discrim ination).
32

See Jeffries v. Harris County Comty. Action Com m’n, 615 F.2d 1025, 1032-34 (5th Cir. 1980)
(“we hold that when a Title VII plaintiff alleges that an employer discriminates against black females, the fact
that black males and white females are not subject to discrimination is irrelevant”). For a discussion of the
progress that women of color have made, as well as stubborn patterns of stagnation, see EEO C’s study titled

15-8

0065

American women from discrimination based on stereotypes and assumptions about them “even in
the absence of discrimination against Asian American men or White women.”33 The law also
prohibits individuals from being subjected to discrimination because of the intersection of their race
and a trait covered by another EEO statute – e.g., race and disability,34 or race and age.35

15-V EVALUATING EMPLOYMENT DECISIONS
Race and color cases generally fall under one of two categories, depending on which
category most suits the facts – disparate treatment and disparate impact. Disparate treatment
discrimination occurs when race or another protected trait is a motivating factor in how an
individual is treated. Disparate impact discrimination occurs when a neutral policy or practice has
a significant negative impact on one or more protected groups, and either the policy or practice is
not job-related and consistent with business necessity or there is a less discriminatory alternative
and the employer has refused to adopt it.
A.

RACIAL DISPARATE TREATMENT
1.

Recognizing Racial Motive

Title VII is violated if race was all or part of the motivation for an employment decision.36
The most obvious violation is a decision driven by racial animus.

W OMEN OF C OLOR : T HEIR E MPLOYMEN T IN THE P RIVATE
http://www.eeoc.gov/stats/reports/womenofcolor/index.html.

S ECTOR

(200 3),

available

at

33

Lam v. Un iversity of Hawaii, 40 F.3d 1551, 1561-62 (9th C ir. 1994) (holding lower court
erred when it treated the claim of an Asian woman in terms of race or sex separately; lower court should have
considered whether discrimination occurred because of the plaintiff’s combined race and sex).
34

See Peter Blanck et al., The Em erging W orkforce of Entrepreneu rs with Disabilities:
Preliminary Study of Entrepreneurship in Iowa, 85 IOWA L. R EV . 1583 n.157 (2000) (African American
wom en with disabilities disproportionately disadvantaged in employment opportunities). The Americans with
Disabilities Act of 1990 (ADA) forbids employers with 15 or more em ployees from discriminating against
qualified individuals with disabilities. See 42 U.S.C. §§ 12101 et seq. Numerous EEOC resources explaining
the A DA can be found on the Comm ission’s web site at ww w.eeoc.gov.
35

The Age Discrimination in Employm ent Act of 19 67 (A DE A) fo rbids employ ers with 20 or
more employees from discriminating against applicants or employees age 40 and over because of their age.
See 29 U.S.C. §§ 621 et seq.
36

However, note that under certain circumstances the statute permits “a business or enterprise
on or near an Indian reservation” to give a preference to “an Indian living on or near a reservation.”
42 U.S.C. § 2000e-2(i); Section 2: Threshold Issues, EEOC Compl.
Man., § 2-II.B.4.ii, at
http://www .eeoc.gov/policy/docs/threshold.html#2-III-B -4-b-ii. See also § 15-V I.C, infra, discussing
diversity and affirmative action.

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EXAMPLE 3
RACIAL ANIMUS
The employer is a family-owned construction company in need of a
construction manager for one of its work crews. Dexter, an African
American, is new to the area and applies for the job. He held the
same position with another company before relocating. Dexter is
rejected. When he finds out that a less-qualified White person was
hired instead of him, Dexter alleges discrimination. The company
secretary credibly testifies that she overheard an argument between
the owner and his son over whether Dexter should be hired. Because
Dexter was clearly the most qualified applicant, the son wanted to
hire Dexter, but the owner did not. At one point the secretary heard
the owner say: “As long as I’m running this company I won’t have
a Black man doing a White man’s job!” The employer has violated
Title VII.
Racially biased decisionmaking and treatment, however, are not always conscious.37 The
statute thus covers not only decisions driven by racial animosity, but also decisions infected by
stereotyped thinking or other forms of less conscious bias.38
EXAMPLE 4
RACIAL STEREOTYPING OR BIAS
Charles, an African American, files a charge alleging that the
employer, a retailer, used an interview to discriminate against him in
favor of a less experienced White applicant. During the EEOC
investigator’s discussion with the hiring manager, she notices that the
hiring manager’s statements are peppered with comments such as
“we were looking for a clean cut image,” and “this is a sophisticated
upscale location . . . I have to make sure the people I hire have, you
know, the ‘soft-skills’ we need.” Knowing that these statements

37

See Thomas v. Eastman Kodak Co., 183 F.3d 38, 42, 59-61 (1st Cir. 1999) (holding layoff
could be found unlawful where performance evaluations on which layoffs were based were racially biased,
and discussing the longstanding recognition that unlawful discrimination can stem from stereotyping and
cognitive bias, as well as from conscious anim us). For an academic discussion of the role unconscious bias
can play in discrimination, see also Charles R . Law rence III, The Id, the Ego, and Equal Protection:
Reckoning with Unconscious Racism, 39 S TAN . L. R EV . 317 (1987).
38

For example, although a “personality conflict” can be a legitimate, nondiscriminatory reason
for an employment decision, the personality conflict must not be rooted in any employer racial bias toward
the employ ee. See generally Chad D erum and Karen E ngle, The Rise of the Personal Animosity Presumption
in Title VII and the Return of “No Cause” Employment, 81 TEX . L. R EV . 1177, 1224-47 (2003 ).

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could be reflective of racial stereotyping and bias,39 the investigator
evaluates the employer’s decisionmaking very carefully. The
investigator interviews Charles’s most recent employer, who tells the
investigator that “customers just loved working with Charles . . . he
was one of our most effective and motivated employees.” The
investigator also interviews the person hired and finds no basis for
believing her “soft skills,” or her “image,” were any better than
Charles’s. In addition, the investigator notices that, like the person
hired over Charles, the rest of the staff also is White even though the
qualified labor market is significantly more diverse. The investigator
concludes that the employer rejected Charles based on racial
stereotyping or bias.
Title VII also does not permit racially motivated decisions driven by business concerns – for
example, concerns about the effect on employee relations,40 or the negative reaction of clients or
customers.41 Nor may race or color ever be a bona fide occupational qualification under Title VII.42
EXAMPLE 5
RACIAL STEERING OR ASSIGNMENT
An employer admits that it usually assigns Black and Asian
American salespersons to sales territories with a high percentage of

39

See P HILIP M OSS & C HRIS T ILLY , S TORIES E MPLOYERS T ELL : R ACE , S KILL , AND H IRING IN
A MERICA (2001) (discussing wide-ranging survey of employers in major U .S. cities regarding skills
employers seek for jobs requiring no more than a high school education; concluding that in this segment of
labor market racial disparities are caused by hard-to-separate mix of objective skill differences, cultural gaps,
and employer racial bias in assessing skills, particularly “soft skills,” i.e., positive attitude, interaction skills,
motivation, dep endability).
40

See International Union, UAW v. Johnson Controls, Inc., 499 U .S. 187, 199 (1991) (disparate
treatment liability “does not depend on why the employer discriminates but rather on the explicit terms of the
discrimination”); Goodman v. Lukens Steel Co., 482 U.S. 656, 668-69 (1987) (though there was “no
suggestion below that the Unions held any racial animus against or denigrated Blacks generally,” Unions
violated Title VII and § 1981 by intentionally not pressing the work grievances of Black employees so as not
to antagonize the emp loyer or upset W hite wo rkers).
41

Cf. Rucker v. Higher Educational Aids Bd., 669 F.2d 1179 (7th Cir. 1982) (Black employee
had viable retaliation claim for opposing employer’s rejection of W hite person for prom otion to yo uth
counselor on grounds that the predo min antly Black comm unity preferred a Black counselor: stating “Title
VII is a blanket prohibition of racial discrimination, rational and irrational alike, even more so than of other
forms of discrimination attacked in Title VII . . . . [Thus,] it is clearly forbidden by Title VII to refuse on
racial grounds to hire someone because you r custom ers or clientele do not like his race.”).
42

See 42 U .S.C. § 2000e-2(e)(1) (Title VII’s “bona fide occupational qualification” (BFOQ)
exception applies to all Title VII bases except race and color); 42 U.S.C. § 2000e-2(k)(2) (“bu siness
necessity” defense available in disparate impact cases is not available in intentional discrimination cases).

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Blacks and Asian Americans. It is uncontested that the employer
does not harbor ill-will toward either group. Instead, the employer
believes they will better serve sales territories with high percentages
of Blacks and Asian Americans, and thus increase sales to the benefit
of the firm’s bottom line and their careers. Charges are filed by
employees who want the opportunity to work in territories regardless
of their racial makeup. The employer has violated Title VII, which
prohibits employers from depriving employees of employment
opportunities by limiting, segregating, or classifying them on the
basis of race.43
EXAMPLE 6
YIELDING TO CUSTOMERS’ RACIAL PREFERENCES
The employer is a home care agency that hires out aides to provide
personal, in-home assistance to elderly, disabled, and ill persons. It
has a mostly White clientele. Many of its clients have expressed a
desire for White home care aides. Gladys, an African American aide
at another agency, applies for a job opening with the employer
because it pays more than her current job. She is well qualified and
has received excellent performance reviews in her current position.
The employer wants to hire Gladys but ultimately decides not to
because it believes its clientele would not be comfortable with an
African American aide. The employer has violated Title VII because
customer preference is not a defense to race discrimination.44

43

See 42 U.S.C. § 2000e-2(a) ((1) unlawful to discriminate in, among other things,
compensation, terms, condition s, or privileges of employment, because of such individual’s race, etc; (2)
unlawful to deprive employment opportunities by limiting, segregating, or classifying employees because of
race or other Title VII-protected traits); Johnson v. Zema Sys. Corp., 170 F.3d 734, 743-44 (7th Cir. 1999)
(African American Plaintiff who alleged he was fired because of race could survive summary judgment
because a jury could infer from unlawful segregation and job limitations – i.e, African-American salespersons
were required to serve predominantly African-American accounts, and White salesperso ns were required to
serve accounts owned or frequented by Whites – that the employer’s stated nondiscriminatory reason for
firing Plaintiff was pretext); cf. Ferrill v. The Parker Group, Inc., 168 F.3d 468, 472-73 & 475 n.7 (11 th Cir.
1999) (holding liable under § 1981 telephone marketing firm that admittedly assigned Black employ ees to
make calls to Black househo lds, and W hite em ploy ees to make calls to W hite households).
44

E.g., Ray v. University of AK, 868 F. Su pp. 1104 , 1126-27 (E.D. Ark. 1994) (even if race
could be a BFOQ, customer preference could not satisfy the defense); Rucker, at note 41, supra.

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2.

Conducting a Thorough Investigation

Because discrimination often is subtle, and there rarely is a “smoking gun,”45 determining
whether race played a role in the decisionmaking requires examination of all of the surrounding facts
and circumstances.46 The presence or absence of any one piece of evidence often will not be
determinative. Sources of information can include witness statements, including consideration of
their credibility; documents; direct observation; and statistical evidence such as EEO-1 data, among
others. See EEOC Compl. Man., Vol. I, Sec. 26, “Selection and Analysis of Evidence.” A nonexhaustive list of important areas of inquiry and analysis is set out below.
Potential Evidence of Racial Disparate Treatment
!

Race-related statements (oral or written) made by decisionmakers or persons
influential to the decision. Race-related statements include not only slurs and
patently biased statements, but also “code words” that are purportedly neutral on
their face but which, in context, convey a racial meaning.47 The credibility of the
witness(es) attesting to discriminatory statements, and the credibility of the
witness(es) denying them, are critical to determining whether such statements
actually were made. If racially discriminatory statements were made, their
importance will depend on their egregiousness and how closely they relate – in time

45

See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081-82 (3d Cir. 1996) (“It has
become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some
other less odiou s intention to what is in reality discriminatory behav ior. In other words, while discriminatory
conduct persists, violators have learned not to leave the prov erbial ‘smokin g gun’ behind.”); cf. McDonn ell
Douglas Corp. v. Green, 411 U.S. 792, 801 (1973) (“it is abundantly clear that Title VII tolerates no racial
discrimination, subtle or otherw ise”).
46

Circumstantial evidence can be just as useful and persuasive as direct evidence, and
sometimes more so. See Desert Palace, Inc. v. Costa, 539 U .S. 90, 100 (2003) (“Th e reason for treating
circumstantial and direct evidence alike is both clear and deep-rooted: ‘C ircum stantial evidence is not only
sufficient, but may also be more certain, satisfying and persuasive than direct evidence.’”) (citation omitted).
47

See, e.g., Ash v. Tyson Foods, Inc., No. 05-379, 2006 WL 386343, at *1 (U.S. Feb. 21, 2006)
(per curiam) (referring to African American men as “boy” could be evidence of discrimination without any
explicit racial modifiers: “Although it is true the disputed word will not always be evidence of racial animus,
it does not follow that the term, standing alone, is always benign. The speaker’s meaning may depend on
various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the
Cou rt of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed
term prob ative o f bias, the court's decision is erroneous.”); McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1117 (9th Cir. 2004) (“The reference to McGinest as a ‘drug dealer’ might certainly be deemed to be a code
word or phrase. In fact, reported cases have recognized the racial motivations behind th is and other
comments and slurs experienced by McGinest. . . . GTE’s attempt to deny the possible racial overtones of
many of the comments made to McG inest or uttered in his presence indicates a willful blindness to racial
stereotyping.”) (citation s om itted); Aman ,85 F.3d at 1083 (supervisor’s statement to Black employee that he
would get rid of “all of yo u” cou ld be seen , in context, as conveying a racially offen sive message).

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and content – to the decision in question. For example, a statement that there are
“too many Asians” in a department, made by a hiring official when discussing
applicants, would be strong evidence supporting an Asian American’s failure-to-hire
claim. Such a statement also would support a claim of hostile work environment by
Asian American employees.48
!

Comparative treatment evidence. This is evidence as to whether the claimant was
treated the same as, or differently than, similarly situated persons of a different race.
Such evidence is not always required, but a difference in the treatment of similarly
situated persons of different races is probative of discrimination because it tends to
show that the treatment was not based on a nondiscriminatory reason. Conversely,
an employer’s consistent treatment of similarly situated persons of different races
tends to support its contention that no discrimination occurred. Comparator evidence
that supports either party’s position must be weighed in light of all the
circumstances. For example, if the group of similarly situated persons who were
treated better than the claimant included persons of the claimant’s race, that would
weaken his or her claim, but it would not be conclusive proof of nondiscrimination
because the balance of the evidence overall might still more convincingly point to
discrimination.49 Identification of persons who are similarly situated to the claimant
should be based on the nature of the allegations, the alleged nondiscriminatory
reasons, and other important factors suggested by the context,50 but should not be
based on unduly restrictive standards.51

48

See subsection 15-VII.A. for a discussion of h arassm ent.

49

See, e.g., Connecticut v. Teal, 457 U.S. 440, 455 (1982) (“Congress never intended to give
an employer license to discriminate against some [persons of a certain race] m erely because he favorably
treats other members of the em ploy ees’ group.”); cf. Sinai v. New England Telephone & Telegraph Co, 3 F.3d
471, 474 (1st Cir. 1993) (in a Section 1981 case: “The relevant issue in a discrim ination claim is whether the
defendant discrim inates again st the plaintiff on an improper basis. The fact that the defendant hired other
mem bers of the protected class is evidence that the jury can consider in reaching the ultimate issue, but is not
dispositive in itself. The jury must weigh all of the evidence.”).
50

For example, if an employee alleges that his race was a reason he was discharg ed or
disciplined for misconduct, similarly situated employees should be identified who engaged in misconduct of
com parable seriou sness. See McDonnell Douglas, 411 U.S. at 804 (Court stated that Black employee who
was terminated and refused rehire because of alleged misconduct should be given a fair opportunity to show
that the reason was pretextual, and “[e]specially relevant to such a showing would be evidence that white
employees involved in acts . . . of com parable seriousness . . . were nev ertheless retained or rehired”).
51

Some courts engage in an analysis of “similarly situated” that is unduly restrictive. See,
e.g.,Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999) (requiring plaintiff to show that all relevant aspects
of her employ ment situation were “nearly identical” to those of her comparator). See generally Ernest F.
Lidge III, The Courts’ Misuse of the Similarly Situated Concept in Employment Discrimination Law, 67 Mo.
L. Rev. 831, 863-82 (200 2).

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!

Relevant background facts. Specific employment decisions and issues should not
be looked at in isolation. Other information that can shed light on whether the
employer’s adverse employment decision was motivated by race includes the
employer’s treatment of other employees (or customers, etc.), race-related attitudes,
the work environment generally, and the context of the challenged employment
decision.52 For example, background evidence that an employer has permitted racial
jokes and slurs about Asian Americans in the workplace would support an Asian
American employee’s allegation that her termination was based on her race.53
Similarly, background evidence that an employer has discriminated against African
Americans in hiring, pay, or promotions would support an African American
employee’s claim that a pattern of mistreatment – e.g., her supervisor undermining
her work, ostracizing her, and making snide comments – is actually a pattern of racebased harassment.54 The point is that background evidence can help determine the
employer’s state of mind and otherwise provide important context. Also, as
suggested by the above examples, the inquiry into background evidence can reveal
other potential violations of the statute.

!

Relevant personnel policies. An employer’s deviation from an applicable personnel
policy, or a past practice, can support an inference of a discriminatory motive.
Conversely, acting in conformance with a consistently applied nondiscriminatory
policy or practice would suggest there is no such motive.

!

The decisionmaker’s race. The race of the decisionmaker may be relevant, but is
not controlling.55 In other words, it should not be presumed that a person would not

52

See, e.g., National Railroad Passeng er Corp. v. Morgan, 536 U.S. 101, 113 (2002) (prior
discriminatory acts may be used as background evidence to support a claim ); Aman, 85 F.3d at 1083 (“A play
cannot be understood on the basis of som e of its scenes but only on its entire performance, and similarly, a
discrimination analysis must concentrate not on individual incidents, but on the overall scenario.”) (citation
and quotation marks omitted).
53

See, e.g., United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713 n.2 (1983)
(background evidence that person responsible for promotion decisions made derogatory remarks about Blacks
in general and Plaintiff in particular w as relevant to Plaintiff’s failure to promote claim ); Robinson v. Runyon,
149 F.3d 507, 512-13 (6th Cir. 1998) (evidence that coworkers circulated fake employment application
incorporating racial stereoty pes of African-Am ericans, and that supervisors laughed upon reading the
document, was relevant to African American employee’s discriminatory discharge claim).
54

See subsection 15-VII.A. for a discussion of h arassm ent.

55

See United States v. Crosby, 59 F .3d 1133 , 1135 n. 4 (11th C ir.1995) (although a Title V II
violation may occur even where a supervisor or decisionmaker is of the same race as the alleged victim, there
was no evidence here that the Black supervisor held members of his own race to a higher standard of conduct
than members of another race) (citing Billingsley v. Jefferson County, 953 F.2d 1351, 1353 (11th Cir.1992)
(Title VII cause of action even where decision-maker and employee are of the same race)). Same-race
harassment also violates Title VII. See infra note 122.

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discriminate against members of his own race. As the Supreme Court has noted,
“[b]ecause of the many facets of human motivation, it would be unwise to presume
as a matter of law that human beings of one definable group will not discriminate
against other members of their group.”56
!

Statistical evidence. Statistics reflecting the employer’s general policy or practice
can be helpful in determining whether race was a factor in a particular selection
decision. For example, a Black applicant’s allegation of hiring discrimination would
be bolstered by evidence that the selection rate of qualified Black applicants is
significantly below the selection rate of qualified applicants of other races, or that
Blacks are significantly under-represented in the employer’s workplace given their
availability in the qualified labor market.57 Conversely, while a racially diverse
workforce cannot immunize an employer from liability for specific acts of
discrimination, the more racially diverse the relevant part of the employer’s
workforce is, the less credible would be the claim of discrimination.58 Statistical
evidence also is important in determining whether the employer has a systemic
pattern or practice of discriminating (see § 15-V.A.3.).

Employer Credibility
The credibility of the employer’s explanation is key and must be judged in light of all the
evidence obtained during the investigation. If an employer’s explanation for the employee’s
treatment ultimately is not credible, that is powerful evidence that discrimination is the most likely
explanation.59 An employer’s credibility will be undermined if its explanation is unsupported by

56

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting Castaneda v.
Partida, 430 U .S. 482, 499 (1977)).
57

See McDonnell Douglas, 411 U.S. at 804-05 (statistical evidence showing an employer’s
general policy or practice is relevant to whether indiv idual employ ment decision was discriminatory ); Bell
v. E.P.A., 232 F.3d 546, 553-54 (7th Cir. 2000) (stating statistical evidence may be “relevant to and probative
of the issue of pretext even when it is insufficient to support a pattern and practice disparate treatment case”
and “the evidence that blacks are not promoted as often as nonblacks, even though not statistically sig nificant,
is still circumstantial evidence of possible discrimination”).
58

See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 579-80 (197 8) (w hile “[a] racially
balanced work force cannot immunize an employ er from liability for specific acts of discrimination, . . .
[p]roof that [the employer’s] workforce was racially balanced or that it contained a disproportionately high
percentage of m inority em ployees is not w holly irrelevant”).
59

See Reeves, 530 U.S. at 147 (“Proof that the defendant’s explanation is unworthy of credence
is simply one form of circumstantial evidence that is prob ative o f intentional discrim ination, and it may be
quite persuasive. Proving the employer’s reason false becomes part of (and often considerably assists) the
greater enterprise of proving that the real reason was intentional discrimination. In appropriate circumstances,
the trier of fact can reasonably infer from the falsity of the explanation that the employ er is dissembling to
cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law

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or contrary to the balance of the facts. Similarly, the credibility of the explanation can be called into
question if it is unduly vague,60 appears to be an after-the-fact explanation, or appears otherwise
fabricated (e.g., the explanation shifts, or inconsistent reasons are given).
Of course, even if the employer’s explanation lacks credibility, discrimination will not be
found if the evidence affirmatively demonstrates that the employer’s real motivation was not race
or another protected EEO trait, but something not covered by the laws enforced by EEOC – for
example, an employee’s blowing the whistle to the SEC about violations of securities laws. Also,
an employer’s business decision cannot be found discriminatory simply because it appears that the
employer acted unwisely, or that the employer’s decision was in error or a misjudgment. At the
same time, the reasonableness of the employer’s explanation is an important part of the overall
picture.61 The investigator must look at the totality of the evidence to determine if there is reason
to believe the employer acted in a racially motivated manner.
EXAMPLE 7
EMPLOYER EXPLANATION CREDIBLE
Alex, of Hispanic descent, has been progressively promoted and now
holds a mid-level management position in a public relations firm in
which he is responsible for several important accounts. The clients
and the employer are happy with his performance. A senior-level
management position that involves more responsibility opens up.
The employer desires someone with demonstrated creativity to fill it.
Alex applies for the job, but is not selected. Instead, the employer
chooses Jennifer, a White female who, while qualified, has slightly
less seniority and relevant experience. Alex files a charge alleging
race and/or national origin discrimination. The investigation reveals
that while Jennifer has somewhat less experience than Alex, she has
displayed more creativity than Alex by developing a new way to
reach the youth market, consistently suggesting improvements on the
that the factfinder is entitled to consider a party’s dishonesty about a material fact as affirmative evidence of
guilt.”) (citations and internal quotation marks omitted).
60

Employers have leew ay to make subjective decisions, but regardless of whether the reasons
are objective or subjective, the employer’s “explanation of its legitimate reasons must be clear and reasonably
specific” so that “the plaintiff is afforded a ‘full and fair opportunity’ to demonstrate pretext.” See Texas
Dep’t of Comm unity Affairs v. Burdine, 450 U.S. 248, 258 (198 1). The ex planation must be clearly set forth
through the presentation of evidence. Id. at 255. A person evaluating a decision based on subjective factors
should do so carefully because subjective factors “are more susceptible of abuse and more likely to mask
pretext.” See Goosby v. Johnson & Johnson M ed., Inc., 228 F.3d 313, 320 (3d Cir. 2000) (citation and
quotation marks om itted).
61

See, e.g., Burdine, 450 U.S . at 259 (Title VII “was not intended to ‘diminish traditional
management prerogatives.’ . . . The fact that a court may think that the employer misjudged the
qualifications of the applicants does not in itself expose him to Title VII liability, although this may be
probative of w hether the emp loyer’s reasons are pretexts for discrimination”) (citations omitted).

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design of marketing materials, and implementing a new system for
quickly disseminating time-sensitive documents. Alex, on the other
hand, is seen as competent, hard working, and professional, but not
as someone who displays quite as much creativity as wanted for the
new job. There is clear and reasonably specific evidence verifying
the perceived difference between Alex’s and Jennifer’s creativity.
There is no evidence of discrimination other than comparative
qualifications. The relatively minor differences in the employees’
qualifications, alone, do not warrant a conclusion that Alex’s
nonpromotion was motivated by race or national origin.62
EXAMPLE 8
EMPLOYER EXPLANATION NOT CREDIBLE
To change Example 7, if Alex outshone Jennifer in the other
performance categories important for the promotion, such as
customer relations, and leadership skills, the employer’s stated reason
– that it chose the most qualified person – would lack credibility and
it would be reasonable to suspect that Alex’s race/national origin
motivated the employer. Similarly, if there was any evidence
supporting Alex’s case other than relative qualifications – e.g.,
derogatory statements about the leadership potential of Hispanics,
shifting explanations, a pattern of not promoting Hispanics, or
inconsistency suggesting bias against Hispanics in measuring
creativity – the totality of the evidence could lead one to conclude
that Alex’s race/national origin likely motivated the employer.63

62

In Ash v. Tyson Foods, the Supreme Court declined to articulate a standard for inferring
pretext from superior qualifications, but the C ourt rejected the Eleventh Circuit’s formulation – that “the
disparity in qualifications [must be] so apparent as virtually to jump off the page and slap you in the face” – as
unh elpful, imprecise, and unlikely to yield consistent results in the courts. See Ash v. Tyson Foods, Inc., No.
05-379, 2006 W L 386343, at *2 (U .S. Feb. 21, 2006) (per curiam).
63

See Goosby, 228 F.3d at 320 -21 (summ ary judgm ent for employer inappropriate because
sufficient evidence existed for a jury to find discrimination; even though the employer contended that the
decision was based on Plaintiff’s score on a competency-assessment tool called “the Matrix” that was
purported to be objective, its criteria and their weighting actually were highly subjective and decisions based
on the Matrix were inconsistent in that Plaintiff pointed out that her supervisor did not follow the M atrix w ith
respect to certain W hites); Bell, 232 F.3d at 554 (reversing summary judgment for employer because
Plaintiffs’ comparative qualifications, coupled with statistical evidence, were sufficient to support the
conclusion that the employer’s stated reaso n that it prom oted the best persons was pretextual).

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3.

Recognizing “Pattern or Practice” Race Discrimination

A systemic “pattern or practice” of intentional discrimination involves statistical and/or other
evidence that demonstrates that discrimination is “standard operating procedure – the regular rather
than the unusual practice.”64 For example, a pattern or practice would be established if, despite the
fact that Blacks made up 20 percent of a company’s applicants for manufacturing jobs and 22
percent of the available manufacturing workers, not one of the 87 jobs filled during a six year period
went to a Black applicant.65
To the extent possible, the statistical analysis must include nondiscriminatory factors that
reasonably might be said to account for any disparity. In a hiring case, for example, relevant factors
would include the racial makeup and qualifications (e.g., education and experience relevant to the
job) of the applicants, or of the general labor market if applicant data are unreliable or difficult to
obtain.66 The disparity also should be “statistically significant,” meaning unlikely to have occurred
by chance.67 Other instances and evidence of discrimination should be examined in conjunction

64

Team sters v. United States, 431 U.S. 324, 336 (197 7). “Absent explanation, it is ord inarily
to be expected that nondiscriminatory hiring practices will in time result in a work force more or less
representative of the racial and ethnic composition of the population from which employees are hired,” and
statistics showing a stark imbalance are often a “telltale sign” of discrimination. Id. at 339 n.20. At the same
time, Title VII does not require an em ploy er’s w orkforce to be racially balan ced. See 42 U .S.C. § 2000e-2(j)
(Title VII does not require race-based hiring simply because there is a racial imbalance between the
employer’s w orkforce and the com munity).
65

This exam ple is based on the facts in EEOC v. O&G Spring and Wire Forms Specialty Co.,
38 F.3d 872, 876-78 & n.8 (7th Cir. 1994) (company engag ed in pattern or practice of race discrimination ).
66

For example, in a pattern-or-practice case involving alleged hiring discrimination against
Blacks, the analysis could measure the difference between the percentage of qualified Black applicants
selected and the percentage of qualified non-Black applicants selected. If applicant flow data are unreliable,
or are difficult or impossible to obtain, the analysis could measure the difference between the percentage of
Blacks in the job(s) at issue and the percen tage of Blacks in the relevant geographical area working in
com parable positions. See Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 311 n.13 (197 7). See also
Bazem ore v. Friday, 478 U .S. 385, 400 (1986) (regression analysis that accounted for major relevant factors
– here, job title, education, tenure – was adm issible; failure of analysis to include “all measurable variables”
went not to admissibility, but to probative value). The probative value of statistics also may be affected by
the size of the at-issue pool (i.e., sam ple size). See Team sters, 431 U.S. at 339 n.20.
67

See Hazelwood, 433 U.S. at 311 n.17 (“a fluctuation of more than two or three standard
deviations would undercut the hypothesis that decisions were being m ade randomly with resp ect to race,”
though “not intend[ing] to suggest that precise calculations of statistical significance are necessary in
employing statistical proof”). W hen statistics are not being relied upon as the core of a pattern-or-practice
case, but as circumstantial evidence in an individual case, the statistics need not be as finely tuned, nor is
statistical significance required. See supra note 57 and accompanying text.

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with the statistics.68 If the statistical disparity is gross, it alone can establish a pattern or practice
claim, such as when there is an “inexorable zero.”69 In all cases, the employer’s explanation or
rebuttal (which may be statistical, nonstatistical, or both) should be fully analyzed and weighed
against the evidence supporting the claim. EEOC staff should contact headquarters experts for
assistance in statistical cases.70
B.

RACIAL DISPARATE IMPACT

A finding of discrimination in the form of disparate impact does not depend on the existence
of an unlawful motive.71 Disparate impact analysis is aimed at removing barriers to EEO that are
not necessarily intended or designed to discriminate – “practices that are fair in form, but
discriminatory in operation”72 in that they operate as “built-in headwinds for [a protected class] and
are unrelated to measuring job capability.”73

68

See, e.g., Team sters, 431 U.S. at 339-40 (anecdotal evidence of discrimination experienced
by specific individuals brings the “cold numbers convincingly to life,” and the usefulness of statistics depends
on all of the surroun ding facts an d circumstances); Bazemore, 478 U.S. at 400 (probative value of statistics
will “dep end in a given case on the factual context of each case in light of all the evidence”).
69

See Hazelwood, 433 U.S. at 307-08 (“Where gross statistical disparities can be shown, they
alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination.”);
Team sters, 431 U.S. at 341 n.23 (“In any even t, fine tuning of the statistics could not have obscured the
glaring absence of minority line drivers. As the Court of Appeals remarked, the company's inability to rebut
the inference of discrimination cam e not from a misuse of statistics but fro m ‘the inex orable zero.’”); cf.
United States v. City of Warren, 138 F.3d 1083, 1094 (6 th Cir. 1998) (in disparate impact case: “The fact that
as of 19 86, w hen both the durational residency requirement and the challenged recruiting practices w ere
intact, the City of W arren employed not a single black person out of a workforce of 15 00 certainly
demonstrates a grossly discriminatory imp act. Statistical analysis is unnecessary to establish this point.”).
70

Investigators generally should contact the Research and Technical Information division of
the Office of Research, Information and Planning (ORIP) with questions during an investigation. The Office
of General Counsel’s Research and Analytical Services (RAS) unit also is an available resource for
investigators and attorneys.
71

See 42 U.S.C. § 2000e-2(k) (disparate impact provision of Title VII); 29 C.F.R. Part 1607
(Uniform Guidelines on Em ploy ee Selection Procedures); Griggs v. Duke Power Co., 401 U .S. 424 (1971 ).
72

Griggs, 401 U.S. at 431.

73

Id. at 432.

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The statute exempts certain policies or practices from disparate impact challenges – most
notably, seniority systems.74 Otherwise, however, the disparate impact approach applies to all types
of employment criteria, whether objective or subjective,75 including:
!

recruitment practices

!

hiring or promotion criteria

!

layoff or termination criteria

!

appearance or grooming standards

!

education requirements

!

experience requirements

!

employment tests

Proving unlawful disparate impact under Title VII first requires a statistical demonstration
that the employer has an employment policy or practice that causes a significant disparate impact
based on race (or another protected trait). The particular policy or practice causing the impact must
be identified, unless the elements of the employer’s decision-making process cannot be separated
for analysis, in which case the decision-making process can be analyzed as one employment
practice.76
Once a policy or practice has been proven to cause a significant impact, the employer has
the burden of demonstrating that the policy or practice is job related for the position in question and
consistent with business necessity.77 If the employer satisfies this burden, the case focuses on

74

The disparate impact exemption for bona fide seniority systems and certain other bona fide
systems is in section 703(h) of Title VII. See 42 U.S.C . § 2000e-2(h); Team sters, 431 U.S. at 353-54. Title
VII also exem pts from disparate impact challenge rules barring the employment of individu als who curren tly
and know ingly use or possess a controlled substance, unless the use or possession is under the supervision
of a licensed health care professional or otherwise authorized by Federal law. See 42 U .S.C. § 2000e-2(k)(3).
75

See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990-91 (1988) (“If an employer’s
undisciplined system of subjective decision-making has precisely the same effects as a system pervaded by
impermissible intentional discrimination, it is difficult to see why Title VII’s proscription against
discriminatory actions should not apply.”).
76

See 42 U.S.C. § 2000e-2(k)(1)(B)(i).

77

See 42 U.S.C. § 2000e-2(k)(1)(A)(i). If a policy or practice used at a certain point of the
selection process has a discrim inatory impact, the employer must justify the discriminatory policy or practice
even if later stages of the selection process eliminate the disparate impact when looking at the selection
process as a whole. See Teal, 457 U.S. at 453-55.

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whether the person challenging the policy or practice can demonstrate that a less discriminatory
alternative exists that meets the business need and whether the employer refuses to adopt it.78
EXAMPLE 9
NO-BEARD POLICY
A pizza delivery restaurant has an inflexible no-beard policy. The
restaurant fires Jamal, one of its African American drivers, for failing
to remain clean shaven. Jamal has a severe case of pseudofolliculitis
barbae (“PFB”), an inflammatory skin condition that occurs primarily
in Black men and that is caused by shaving. The severity of the
condition varies, but many of those who suffer from PFB effectively
cannot shave at all. If Jamal or EEOC were to challenge the no-beard
policy as unlawful because it has a significant negative impact on
Blacks, the employer would have to prove the policy is job-related
and consistent with business necessity.79 See also § 15-VII.B.5.

15-VI EQUAL ACCESS TO JOBS
A.

RECRUITING

Who ultimately receives employment opportunities is highly dependent on how and where
the employer looks for candidates. Accordingly, Title VII forbids not only recruitment practices that
purposefully discriminate on the basis of race but also practices that disproportionately limit
employment opportunities based on race and are not related to job requirements or business needs.80
For example, recruiting from racially segregated sources, such as certain neighborhoods, schools,

78

See 42 U.S.C. §§ 2000e-2(k)(1)(A)(ii) & (k)(1)(C).

79

See Bradley v. Pizzaco of Nebraska, 7 F.3d 797, 798-99 (8th Cir. 1993) (granting EEO C an
injunction against a pizza restauran t because burden of a narrow exception for Black men with PFB w as
minimal and the restaurant “failed to prove a compelling need for the strict no-beard policy as applied to those
afflicted with PFB and has failed to present any evidence suggesting that the current policy is without
workable alternatives or that it has a m anifest relationship to the employment in question”). The analysis of
job-relatedness and business necessity is fact specific – there are no absolutes. For example, a no-beard
policy could be legal in a situation in which beards were sho wn to interfere with safely using a respirator and
no viable alternative existed under the circumstances. See 29 C .F.R. § 1910.134(g)(1)(i) (OSHA respirator
standard); Interpretation Letter from John L. Henshaw, Assistant Secretary of Labor for OSHA, to Senator
Carl Levin (Mar. 7, 2003) (while employers “cannot permit respirators with tight-fitting facepieces to be w orn
by employees who have facial hair that comes between the sealing surface of the facepiece and the face, or
that interferes with valve function,” the problem sometimes can be solved by trimming the beard, and “[s]ome
types of respirators do not require a face seal and can usually be worn by bearded employ ees. . . . All
respirators must be selected based on the respiratory hazard to which the worker is exposed. The employer
must also consider user factors th at affect performance and reliability.”), available at http://www.osha.gov/.
80

See 42 U.S.C. §§ 2000e-2(a)(1), (a)(2).

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religious institutions, and social networks, leads to hiring that simply replicates societal patterns of
racial segregation.
1.

Job Advertisements and Employment Agencies

Title VII specifically forbids job advertisements based on race, color, and other protected
traits.81 The statute also prohibits discrimination by employment agencies.82 If an employer asks
an employee-referral agency or search firm not to refer or search for candidates of a particular race,
both the employer that made the request and the employment agency that honored it would be
liable.83
2.

Word-of-Mouth Referrals

While word-of-mouth recruiting in a racially diverse workforce can be an effective way to
promote diversity, the same method of recruiting in a non-diverse workforce is a barrier to equal
employment opportunity if it does not create applicant pools that reflect the diversity in the qualified
labor market.84 Similarly, unions that are not racially diverse should avoid relying solely on member
referrals as the source of new members.85
81

See 42 U .S.C. § 2000e-3(b) (unlawful for entities cov ered by Title VII to print or publish
or cause to be printed or published any notice or advertisement indicating any preference, limitation,
specification, or discrimination based on race, color, religion, sex, or national origin, except when religion,
sex, or national origin is a BFO Q (race and color can never be BFOQ s)).
82

See 42 U .S.C. § 2000e-2(b) (unlaw ful for employment agencies to discriminate); 42 U.S.C.
§ 2000e(c) (defining “employm ent agen cy”).
83

See Enforcement Guidance: Application of EEO Laws to Contingent Workers Placed by
Temp orary Employment Agencies and Other Staffing Firms, at Qu estion 7 (Dec. 1997), available at
http://www.eeoc.gov/policy/docs/conting.html.
84

Investigative staff should contact their leg al units when investigating potential disparate
impact of word-of-mouth recruiting, nepotism, and the like. Com pare Thomas v. Washington County Sch.
Bd., 915 F.2d 922, 924-26 (4th Cir. 1990) (affirming disparate impact ruling where employer’s “practices of
nepotism and word-of-mouth hiring kept [African Am ericans] unaware of job openings”), with EEOC v.
Chicago Miniature Lamp W orks, Inc., 947 F.2d 292 (7th C ir. 1991) (passive reliance on employ ee referrals
by accepting applicants who learned of jobs through current employees could be basis of pattern or practice
disparate treatment claim, but disparate impact claim not allowed because, without an affirmative act by the
employ er, such a claim w ould in essence be a “bottom-line” attack on employer’s wo rkforce statistics).
85

See EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594 (1st Cir. 1995) (affirming
lower court ruling that union’s “membership sponsorship policy” had unlaw ful disparate impact on Blacks);
cf. Team sters, 431 U.S. at 349 n.32 (describing how neutral practices can unlawfully perpetuate the effect of
discrimination: “Local 53 Asbestos Workers v. Vogler . . . provides an apt illustration: There a union had a
policy of excluding persons not related to present members by blood or marriage. When in 1966 suit was
brought to change this policy, all of the union’s mem bers were white, largely as a result of pre-Act intentional
[racial] discrimination. The court observed: ‘While the nepotism requirement is applicable to black an d white

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3.

Homogeneous Recruitment Sources

Title VII is violated by recruiting persons only from largely homogeneous sources if the
recruitment practice has a racial purpose, or if it has a significant racial impact and cannot be
justified as job related and consistent with business necessity. For example, Title VII might be
violated if a municipal employer with an overwhelmingly White population and workforce abuts
a major city with an overwhelmingly Black population, but the municipality only hires its own
residents and refuses to advertise its jobs in newspapers that circulate in the abutting major city.86
As another example, Title VII might be violated if a statistically significant racial disparity results
from recruiting persons exclusively from predominantly White schools, or exclusively from
predominantly Black schools, when it would be feasible to recruit qualified students from a range
of sources. More investigation would be needed to determine whether a racial motivation exists,
or whether the employer’s recruitment practices can be justified as job related and consistent with
business necessity.
4.

Discriminatory Screening of Recruits

The process of screening or culling recruits presents another opportunity for discrimination.
Race obviously cannot be used as a screening criterion. Nor may employers use a screening
criterion that has a significantly disparate racial impact unless it is proven to be job related and
consistent with business necessity.
EXAMPLE 10
DISCRIMINATORY SCREENING
An executive in a large company asks a recruiter in the human
resources department to find her a new secretary. The executive tells
the recruiter that in addition to excellent secretarial skills, she wants
alike and is not on its face discriminatory, in a completely white union the present effect of its continued
application is to forever deny to [Blacks] and M exican-Am ericans any real opportunity for membership’”).
86

Com pare United States v. City of Warren, MI, 138 F.3d 1083, 1094 (6 th Cir. 1998) (on
similar facts, holding Department of Justice established that municipality’s recruiting practices had a disparate
impact on Black potential job applicants in violation of Title VII: “Warren’s limitation of its applicant pool
to residents of the overwhelmingly white city, combined with its refusal to publicize jobs outside the racially
homogenous county, produced a de facto barrier between employment opportunities and members of a
protected class. A plaintiff need no t identify a sign reading ‘No Blacks Need A pply’ before invoking Title
VII.”), and NAACP v. Town of Harrison, NJ, 940 F.2d 79 2, 799-805 (3d Cir. 1991) (affirming low er court’s
finding that requirement that town employ ees become residents w ithin one year of hire had unlaw ful disparate
impact on Blacks; town’s population was 0.2 percent Black and town had never hired a Black person, though
the metropolitan area was home to over 214,000 Blacks, and Blacks made up 22 percen t of tow n’s private
sector workforce), with NAACP v. City of Bayonne, NJ, 134 F.3d 113, 123-25 (3d Cir. 1998) (upholding
finding that the plaintiff did not prove that residency requirement caused disparate impact – statistical
evidence was not strong, and city showed that its four-year moratorium on the residency requirement did not
raise the number of Black employees).

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only to interview candidates who will relate well with high level
executives inside and outside the company. In response to this, the
recruiter searches the company’s résumé database. The search
produces 50 current résumés. In order to reduce this to a more
manageable number, the recruiter refines the search to eliminate
résumés from zip codes that are predominantly Black or Latino. This
violates Title VII.
B.

HIRING AND PROMOTION

The law generally leaves it to the employer’s business judgment to determine who should
be hired or promoted. Within that context, however, an applicant’s race should not affect his or her
chances. This means that employers cannot treat persons of different races differently in the hiring
or promotion process. Nor may employers use selection criteria that have a significant
discriminatory effect without being able to prove that the criteria are job-related and consistent with
business necessity. Thus, a sound way for employers both to achieve business goals and to comply
with the law is to hire and promote based on job-related ability, as measured by uniform and
consistently applied qualification/selection standards.
1.

Uniform and Consistently Applied Standards

When making hiring and promotion decisions, employers must apply the same selection
criteria to persons of different races, and apply them in the same way, giving the same weight to
each criterion for each person. The reasons given for selection decisions should be credible and
supported by the evidence. The following are examples.
EXAMPLE 11
NONDISCRIMINATORY SELECTION DECISION
Malcolm, an Asian American, applies for an executive position with
the employer, a health maintenance organization. Malcolm is well
qualified; he has a B.S. in biology from a large state university and
an M.D. from a prestigious private university. Malcolm also has
seven years’ experience practicing internal medicine and recently
obtained an Executive M.B.A. from a well-respected business school.
The employer interviewed Malcolm and eight other candidates.
Malcolm was one of two finalists brought back for a final round of
interviews. The employer’s selection committee ultimately chose
Robert, a White finalist with slightly fewer qualifications but with
experience in a similar job for a competitor. The employer tells
EEOC that given Robert’s experience, it believed it would gain the
most competitive benefit by hiring him. The EEOC investigator
confirms Robert’s experience working for a competitor, and reads the
minutes of the selection committee’s final meeting which reflect that
this was the reason discussed at the meeting for choosing Robert over

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Malcolm. Here, the evidence supports the employer’s legitimate,
nondiscriminatory reason.
EXAMPLE 12
DISCRIMINATORY SELECTION DECISION
Kai, a Native American, files a charge after he applied for a
promotion, was interviewed, and was not selected. The investigation
reveals that, based on objective qualifications, Kai was deemed one
of the top candidates but the job ended up going to Ted, a similarly
qualified White candidate from outside the company. The hiring
manager tells the investigator that he thought that Kai was well
qualified but he chose Ted because he “seemed to be a better fit; I’m
comfortable with him and I can see him in my job one day.” When
pressed to be more specific,87 the manager says he liked the fact that
Ted worked for a competitor. However, the investigation reveals that
although Ted did work for another company in the industry, it was
not really a competitor. Employee and management witnesses tell
the investigator that Ted’s experience working for another company
in the industry was no more valuable than Kai’s experience working
for the company itself. The witnesses also tell the investigator that,
until now, the company practice had been to prefer qualified internal
candidates over similarly qualified external candidates. There is
reasonable cause to believe that Kai was discriminated against based
on his race or national origin.
EXAMPLE 13
DISCRIMINATORY SELECTION DECISION
Rita, an African American, has worked seven years as a Program
Analyst for a federal agency. She consistently has received
outstanding performance evaluations. Each of the last four years,
Rita has applied for openings for jobs in her office in a higher grade.
The agency has rejected Rita each time. After the fourth rejection,
Rita initiated EEO counseling, and then a formal complaint, because
she believed she had been repeatedly discriminated against. She
stated that four White employees were promoted over her, each time
for a different reason. The investigation reveals that the agency
actually did apply the same promotion criteria during each selection.
Importantly, however, witness interviews and documentary evidence
(e.g., the employer’s interview notes) strongly suggest that the
agency weighted the criteria differently each time so that Rita was the
least qualified applicant. In other words, it appears that when a jobrelated qualification favored Rita it was deemed less important than

87

See supra note 60.

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when a qualification favored a White candidate. Moreover, statistics
reveal that Whites are promoted more often than similarly qualified
African Americans. There is reasonable cause to believe Rita was
discriminated against based on her race.
2.

Job-Related Standards, Consistent with Business Necessity

In an employer’s important effort to hire the best candidate, it might unintentionally engage
in race discrimination by using selection standards that measure differences between racial groups
that are not related to the job. Title VII provides that, if a selection standard is shown to have a
significant impact based on race, the employer must demonstrate that the standard is job-related and
consistent with business necessity. Thus, employers should be sure to “measure the person for the
job and not the person in the abstract.”88
Education Requirements
Educational requirements obviously may be important for certain jobs. For example,
graduation from medical school is required to practice medicine. However, employers often impose
educational requirements out of their own sense of desirable qualifications. Such requirements may
run afoul of Title VII if they have a disparate impact and exceed what is needed to perform the job.
As the Supreme Court stated in one of its earliest interpretations of Title VII: “History is filled with
examples of men and women who rendered highly effective performance without the conventional
badges of accomplishment in terms of certificates, diplomas, or degrees. Diplomas and tests are
useful servants, but Congress has mandated the commonsense proposition that they are not to
become masters of reality.”89
EXAMPLE 14
EDUCATION REQUIREMENT
Chloe, White, is the Head Secretary for a division of XYZ Corp. She
took the job right after college and now is departing after three years
to go to graduate school. The employer was thrilled with Chloe’s
work, and when it gets notice that she is leaving, it sets out to find a
replacement. Sylvia, an African American, applies for the job.
Sylvia is a successful graduate of the local business institute, and has
spent the last five years working as a secretary for a regional bank,
rising a year ago to become the Executive Secretary in one of its
major departments. The employer rejects Sylvia’s application
because she is not a college graduate, which triggers a charge.
Statistical evidence shows that in the local labor market African
Americans and Hispanics in the pool of administrative and clerical

88

Griggs, 401 U.S. at 433.

89

Id.

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workers are significantly less likely to have college degrees than
Whites. The employer defends its education requirement by
attributing Chloe’s success to the fact that she was college educated,
noting that the Head Secretary position involves not only traditional
secretarial work, but also more complex responsibilities such as
preparing reports, and training and supervising other clerical staff.
The investigation reveals, however, that none of the firm’s prior
successful Head Secretaries had college degrees, and it is not the
industry standard. Most importantly, the employer presents no
evidence that a college degree is more predictive of, or correlated
with, job performance than a degree from a business institute plus
significant relevant experience (i.e., Sylvia’s qualifications), or other
credentials and experiences that would render a person qualified for
the job. The evidence establishes that the employer has violated Title
VII because the college-degree requirement screens out African
Americans and Hispanics to a significant degree but it has not been
demonstrated to be job related and consistent with business necessity.
Employment Testing
Employment testing is another practice to which the disparate impact principle frequently
is applied. Title VII provides that it is not an unlawful employment practice for an employer to give
and to act upon the results of any professionally developed ability test “provided that such test, its
administration or action upon the results is not designed, intended or used to discriminate on the
basis of race” or other protected bases.90 Under this provision, employment tests that have a
disparate impact based on race or another protected trait must be validated pursuant to the
government’s Uniform Guidelines on Employee Selection Procedures.91 For example, if an
employer decides to use a personality test to determine which employees are “management
material,” and the test has a significant disparate impact based on race or another protected trait, the
employer first must have the test professionally validated to ensure that the test is predictive of, or
significantly correlates with, important elements of a manager’s job performance.92 Even if the
employer meets that standard, the test still may violate Title VII if there is another, less

90

See 42 U.S.C. § 2000e-2(h).

91

See 29 C.F.R. Part 1607 (UG ESP ); Griggs, 401 U.S. at 436 (“From the sum of the legislative
history relevant in this case, the conclusion is inescapable that the EEOC’s construction of §703(h) to require
that employment tests be job-related comports w ith Congressional intent.”).
92

See 29 C.F.R. § 1607.3A (“The use of any selection procedure which has an adverse impact
on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or
ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the
proced ure has been validated in accordance w ith these guidelines, or the provisions of section 6 below are
satisfied.”).

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discriminatory alternative to the test that serves the employer’s needs and the employer fails to use
this alternative.93
Title VII also explicitly prohibits employers from race-norming employment tests, i.e,
adjusting scores, using different cutoff scores, or otherwise altering the results of employment tests
on the basis of race or other Title VII-protected bases.94 For example, it is illegal to use different
“passing” scores for different racial groups or to alter scores on employment tests in order to make
the mean score the same for each race. This does not mean an employer cannot change the way it
grades employment tests. For example, an employer may go from a straight ranking system to a
grade banding system (i.e., a system that groups similar grades together) if done for
nondiscriminatory purposes.95
Conviction and Arrest Records
Of course, it is unlawful to disqualify a person of one race for having a conviction or arrest
record while not disqualifying a person of another race with a similar record. For example, an
employer cannot reject Black applicants who have conviction records when it does not reject
similarly situated White applicants.96
In addition to avoiding disparate treatment in rejecting persons based on conviction or arrest
records, upon a showing of disparate impact, employers also must be able to justify such criteria as
job related and consistent with business necessity. 97 This means that, with respect to conviction

93

See 42 U .S.C. § 2000e-2(k)(1)(A).

94

See 42 U.S.C. § 2000e-2(l).

95

See Chicago Firefighters Local 2 v. City of Chicago, 249 F.3d 649, 655-56 (7th Cir. 2001)
(rather than using a straight ranking system to measure and compare test scores on a promotional exam, the
fire department banded similar scores together; court stated that the banding was designed to simplify scoring
and remove meaningless gradations, not for the unlawful purpose of making the scores of any particular race
seem higher).
96

A 2003 study suggests this is a sig nificant pro blem . See Devah Pager, The Mark of a
Criminal Record, A MERICAN J OURNAL OF S OCIOLOGY (Mar. 2003) (audit study sending matched pairs of
Black and White male college students with similar self-presentation styles to apply for 350 low-skilled jobs
advertised in the Milwaukee classifieds; purpose w as to test the degree to w hich a criminal record affects
subsequent employment opportunities; study found that when the White “testers” were assigned a fake 18month prison record – for possession of cocaine w ith intent to sell – they were called back by employers 17%
of the time, while the Black testers assigned the same record were called back only 5% of the time; Whites
without a criminal record had a 34% call back rate versus a 14% call back rate for Blacks without a criminal
record), available at http://www.northwestern.edu/ipr/publications/papers/2003/pagerajs.pdf.
97

See Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1293-99 (8th Cir. 1975)
(applying Title V II disparate im pact principles to employ er’s “n o convictions” hiring policy); Caston v.
Methodist Medical Cen ter of Ill., 215 F. Supp. 2d 1002, 1008 (C.D. Ill. 2002) (race-based disparate impact

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records, the employer must show that it considered the following three factors: (1) the nature and
gravity of the offense(s); (2) the time that has passed since the conviction and/or completion of the
sentence; and (3) the nature of the job held or sought.98 A blanket exclusion of persons convicted
of any crime thus would not be job-related and consistent with business necessity.99 Instead, the
above factors must be applied to each circumstance. Generally, employers will be able to justify
their decision when the conduct that was the basis of the conviction is related to the position, or if
the conduct was particularly egregious.
Arrest records are treated slightly differently. While a conviction record constitutes reliable
evidence that a person engaged in the conduct alleged (i.e., convictions require proof “beyond a
reasonable doubt”), an arrest without a conviction does not establish that a person actually engaged
in misconduct.100 Thus, when a policy or practice of rejecting applicants based on arrest records
has a disparate impact on a protected class, the arrest records must not only be related to the job at
issue, but the employer must also evaluate whether the applicant or employee actually engaged in
the misconduct. It can do this by giving the person the opportunity to explain and by making
follow-up inquiries necessary to evaluate his/her credibility.101
Other employment policies that relate to off-the-job employee conduct also are subject to
challenge under the disparate impact approach, such as policies related to employees’ credit history.
People of color have also challenged, under the disparate impact theory, employer policies of
discharging persons whose wages have been garnished to satisfy creditors’ judgments.102

claim challenging employer’s policy of not hiring former felons was cognizable under Title VII and thus
survived motion to dismiss).
98

See generally EEO C’s Policy Statement on the Issue of Conviction Records under Title VII
of the Civil Rights Act of 1964 (1987 ).
99

See Green, 523 F.2d at 1298-99 (striking down employer’s absolute bar of anyone ever
convicted of a crime other than a minor traffic offense: “Although the reasons [the employer] advances for
its absolute bar can serve as relevant considerations in making individual hiring decisions, they in no way
justify an absolute policy which sw eeps so broadly. W e cannot conceive of any business necessity that would
automatically place every individual convicted of any offense, except a minor traffic offense, in the
permanent ranks of the unemployed. This is particularly true for blacks who have suffered and still suffer
from the burdens of discrimination in our society.”).
100

See Gregory v. Litton Sys., Inc., 316 F. Supp. 401 (C.D. Cal. 1970) (judgm ent for Plaintiff
who challenged employer policy of not hiring anyone w ho had been arrested on “a number of occasio ns,”
where this threshold was undefined, and company had in its employ many perso ns who had been arrested),
aff’d, 472 F.3d 631 (9th C ir. 1972).
101

See generally EEO C’s Policy Guidance on the C onsideration of Arrest Records in
Employment Decisions under Title VII of the Civil Rights Act of 1964 (1990 ).
102

Com pare, e.g., Robinson v. City of Dallas, 514 F.2d 1271 (5th Cir. 1975) (recognizing policy
of discharging persons w ho failed to pay “just debts” could be challenged, but ruling for employer because

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C.

DIVERSITY AND AFFIRMATIVE ACTION

In order to open the American workplace to historically excluded groups, some employers
use diversity and affirmative action programs. Diversity and affirmative action are related concepts,
but the terms have different origins and legal connotations. Workforce diversity is a business
management concept under which employers voluntarily promote an inclusive workplace.
Employers that value diversity create a culture of respect for individual differences in order to “draw
talent and ideas from all segments of the population” and thereby potentially gain a “competitive
advantage in the increasingly global economy.”103 Many employers have concluded that a diverse
workforce makes a company stronger, more profitable, and a better place to work,104 and they
implement diversity initiatives for competitive reasons rather than in response to discrimination,
although such initiatives may also help to avoid discrimination.
Title VII permits diversity efforts designed to open up opportunities to everyone. For
example, if an employer notices that African Americans are not applying for jobs in the numbers
that would be expected given their availability in the labor force, the employer could adopt strategies
to expand the applicant pool of qualified African Americans such as recruiting at schools with high
African American enrollment.105 Similarly, an employer that is changing its hiring practices can take
steps to ensure that the practice it selects minimizes the disparate impact on any racial group.106 For
although Plaintiffs established that Blacks comprised a disproportionately large portion of the poor people
in Dallas, they did not offer statistics showing that people who do not pay their just debts tend to be poor
people), with Johnson v. Pike Corp. of America, 332 F. Su pp. 490 (C .D. C al. 1971) (approving stipulation
for judgment against defendant where garnish ment policy had disparate impact on Blacks and other people
of color and w as not supported by business necessity).
103

E QUAL E MPLOYMEN T O PPORTUNITY C OMMISSION, “B EST ” E QUAL E MPLOYMENT
O PPORTUNITY P OLICIES, P ROGRAMS, AND P RACTICES IN THE P RIVATE S ECTOR 7 (2d ed. 1998). The com plete
report is available at http://www.eeoc.gov/abouteeoc/task_reports/practice.html.
104

Cf. Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (“major American businesses have made
clear that the skills needed in today’s increasingly global marketplace can only be developed through
exposure to widely diverse people, cultures, ideas, and viewpoints. . . . What is more, high- ranking retired
officers and civilian leaders of the United States military assert that, ‘[b]ased on [their] decades of
experience,’ a ‘highly qualified, racially diverse officer corps . . . is essential to the military’s ability to fulfill
its principle m ission to provide national security ’”) (citations to briefs om itted).
105

Cf. Duffy v. Wolle, 123 F.3d 1026, 1038-39 (8th C ir. 1997) (Bivens action under the
McDonn ell Douglas framework: “An em ploy er’s affirmative efforts to recruit minority and female applican ts
[do] not constitute discrimination. An inclusive recruitment effort enables employers to generate the largest
pool of qualified applicants and helps to ensure that minorities and women are not discriminatorily excluded
from employmen t. This not only allows em ployers to obtain the best possible emp loyees, but it is an
excellent way to avoid lawsuits.”) (citations and quotation marks omitted).
106

See EEOC Uniform G uidelines on Employee Selection Procedures, 29 C.F.R. §§ 1607.3(B),
1607.6(A) (approving use of alternative selection procedures in order to eliminate or decrease adverse
impact).

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example, an employer that previously required new hires to have a college degree could change this
requirement to allow applicants to have a college degree or two years of relevant experience in the
field. A need for diversity efforts may be prompted by a change in the population’s racial
demographics, which could reveal an underrepresentation of certain racial groups in the work force
in comparison to the current labor pool.
Affirmative action, in contrast, “means those actions appropriate to overcome the effects of
past or present practices, policies, or other barriers to equal employment opportunity.”107
Affirmative action under Title VII may be (1) court-ordered after a finding of discrimination,108
(2) negotiated as a remedy in consent decrees and settlement agreements, or (3) conducted pursuant
to government regulation.109 Also, employers may implement voluntary affirmative action plans in
appropriate circumstances, such as to eliminate a manifest imbalance in a traditionally segregated
job category.110 In examining whether such a voluntary affirmative action plan is legal under Title
VII, courts consider whether the affirmative action plan involves a quota or inflexible goal, whether
the plan is flexible enough so that each candidate competes against all other qualified candidates,
whether the plan unnecessarily trammels the interests of third parties, and whether the action is
temporary, e.g., not designed to continue after the plan’s goal has been met.111
107

EEOC Guidelines on Affirmative Action, 29 C.F.R . § 1608.1(c).

108

See, e.g., Loca l 28 of the Sheet M etal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421, 448-49
(1986) (Congress gave lower courts broad pow er under T itle VII to fashion the m ost complete relief possible
to remedy discrimination, including the power to fashion affirmative action relief).
109

For example, federal contractors may be subject to affirmative action requirements of
Executive Order 11246, which is enforced by the Department of Labor’s Office of Federal Contract
Comp liance Programs (http://w ww .dol.gov/esa/ofccp/index.htm ) and/or the affirmative action requirements
of state and local governments. Federal executive branch agencies must have “an affirm ative program of
equal employ ment opportunity ” for all employ ees an d applican ts for em ploy ment, see 42 U.S.C. § 2000e-16
a n d 2 9 U . S . C . § 7 9 1 , a s s e t f o r th i n E E O C ’ s M a n a g e m e n t D i re c t iv e 7 1 5
(http://www.eeoc.gov/federal/md715/index.html).
110

See United Steel W orkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v.
Transportation Agency, 480 U.S. 616 (19 87).
111

See Weber, 443 U.S. at 208 (because Blacks had long been exclud ed from craft unions
because of race, only 1.83% of the plant’s craft workers were Black, and thus the union and the employer
collectively bargained an affirmative action plan that reserved for Blacks 50% of the openings in an in-plant
craft training program, to be followed until the percentage of Black craftworkers in the plant was
com mensurate with the percentage of Blacks in the local labor force; Supreme Court upheld the affirmative
action plan on grounds that its purposes mirrored those of Title V II, the plan did not unnecessarily trammel
the interests of W hite em ploy ees, and the plan was a temporary measure not intended to maintain a racial
balance, but intended to eliminate a racial im balance); Sheet Metal Workers, 478 U.S. at 448 (“[t]he
availability of race-conscious affirmative relief . . . as a remedy for a violation of Title VII . . . furthers the
broad purposes underlying the statute” because “Co ngress enacted Title VII based on its determination that
racial minorities w ere subject to pervasive an d systematic discrimination in employment”). See also Johnson,
480 U.S. at 632 (“manifest imbalance” does not need to reach the level of a prim a facie case of

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An affirmative action plan implemented by a public sector employer is subject to both Title
VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the United States
Constitution.112 Some federal courts have held that public law enforcement agencies may satisfy the
Equal Protection Clause if an “operational need” justifies the employer’s voluntary affirmative
action efforts.113 In the higher education context, the Supreme Court decided in Grutter v. Bollinger
that attaining a diverse student body can justify considering race as a factor in specific admissions
decisions at colleges and universities without violating the Equal Protection Clause or Title VI of
the Civil Rights Act of 1964. The Supreme Court has not yet ruled on whether an “operational
need” or diversity rationale could justify voluntary affirmative action efforts under Title VII, but a

discrimination); EEOC Guidelines on Affirmative Action, 29 C.F.R. Part 1608.
112
Com pare Wygant v. Jackson Board of Education, 476 U .S. 267, 273-76 (198 6) (finding that
a race-based layoff provision in a collective-bargaining agreement, which was created by a public school
board and teachers un ion to remedy present effects of societal discrimination against minority employees and
to prov ide m inority role models for m inority students, violated the Equal Protection Clause ), with Johnson,
480 U.S. at 620 n.2 & 641-42 (uph olding under Title VII a public employer’s voluntary affirmative action
plan which permitted sex to be considered as a factor for promotions to positions within a trad itionally
segregated job classification, and noting that, “where the issue is properly raised, public employ ers must
justify the ado ption and implementation of a voluntary affirmative action plan under the Equal Protection
Clause”). The Johnson Court ob served, in a footnote, that “[T itle VII] was not intended to extend as far as
. . . the Constitution.” Johnson, 480 U.S. at 628 n.6.
113

See, e.g., Petit v. City of Chicago, 352 F.3 d 1111, 1115 (7th Cir. 2003) (Chicago Police
Department had a compelling interest in diversity in police force serving large, racially and ethnically divided
metropolitan area, justifying, under Equal Protection Clause, city’s affirmative action promotions of African
American and Hisp anic officers to ran k of sergeant); Reynolds v. City of Chicago, 296 F.3d 524, 530-31
(7th Cir. 2002) (upholding non-remedial promotion of Hispanic officer because city proved it was warranted
by com pelling public safety need for Hispanic officers in supervisory roles to sensitize other officers to
special problems related to Hispanic neighborhoods, and to promote trust in the citizens of those
neighborhoods; court recognized this as particularly compelling in light of the need for effective police work
in the age of public co ncern about international terrorism); Talbert v. City of Richmond, 648 F.2d 925, 931-32
(4th Cir. 1981) (holding that “the attainment of racial diversity in the top ranks of the police department was
a legitimate interest of the city” and thus promotion of City’s first Black officer to Major over W hite plaintiff
in a city with a 50% Black population was law ful); accord Cotter v. City of Boston, 323 F.3d 160, 172 n.10
(1st Cir. 2002) (declining to address whether meeting the operational need s of the po lice department are
compelling state interests but stating that Court is “sympathetic to the argument that communities place m ore
trust in a diverse police force and that the resulting trust reduces crime rates an d improves policing”). But
see Patrolmen's Benevolent Ass'n. v. City of New York, 310 F.3d 43, 52-53 (2d Cir. 2002) (acknowledging
that “‘a law enforcement body’s need to carry out its mission effectively , with a w orkforce that app ears
unbiased, is able to comm unicate with the public and is respected by the comm unity it serves,’ may constitute
a compelling state interest,” but holding that race-based transfers of B lack and Hisp anic police officers to
precinct where a Black man was tortured were not lawful because “mere assertion of an ‘operational need’
to make race-conscious employment decisions does not give a police departm ent carte blanche to dole out
work assignments based on race if no such justification is established”) (internal citation om itted).

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number of legal scholars and practitioners have debated the issue.114
The Commission encourages voluntary affirmative action and diversity efforts to improve
opportunities for racial minorities in order to carry out the Congressional intent embodied in Title
VII.115 Further, the Commission believes that “persons subject to Title VII must be allowed
flexibility in modifying employment systems and practices to comport with the purposes” of the
statute.116 However, employers are cautioned that very careful implementation of affirmative action
and diversity programs is recommended to avoid the potential for running afoul of the law.117 EEOC
investigators should consult with attorneys from their legal unit on charges of discrimination
involving affirmative action and diversity plans.

114

See, e.g., Richard N. Appel, Affirmative Action in the Workplace: Forty Yea rs Later, 22
H OFSTRA L AB . & E MP . L.J. 549, 571-74 (Spring 2005) (addressing w hether Grutter diversity rationale will
justify race-conscious decisions in the private sector employment context under Title VII); Michael L.
Foreman, Kristin M. Dadey and Audrey J. Wiggins, The Continuing Relevance of Race-conscious Remedies
and Programs in Integrating the Nation's Workforce, 22 H OFSTRA L AB . & E MP . L.J. 81, 101-104 (F all 2004)
(discussing the implications of Grutter for affirmative action plans in employment); Paul Frymer and John
D. Skrentny, The Rise of Instrumental Affirmative Action: Law and the New Significance of Race in America,
36 C ONN . L. R EV . 677, 693-697 (Spring 2004) (discu ssing the treatment of “operational need” cases involving
police under Title VII and the Equal Protection C lause); Rebecca Hanner W hite, Affirmative Action in the
Workpla ce: The Significance of G rutter, 92 K Y . L.J. 263, 272-78 (2003-2004) (distinguishing affirmative
action in employment context from educational context and analyzing whether the diversity rationale in
Grutter will justify affirmative use of race for non-remedial purpose under Title VII, especially for private
employ ers).
115

EEOC Guidelines on Affirmative Action, 29 C.F.R . § 1608.1(c).

116

Id.

117

See, e.g., Frank v. Xerox Corp., 347 F.3d 130, 137 (5th C ir. 2003) (a jury could consider
Xerox’s “Balanced W orkforce Initiative” (BWF), in which Xerox identified explicit, specific racial goals for
each grade and job level, to be d irect evidence of discrimination against Blacks in light of evidence that
Blacks were considered to be “over-represented” and Whites “under-represented,” and m anagers were
evaluated on how well they com plied with the BWF; thus “a jury looking at these facts could find that Xerox
considered race in fashionin g its em ploy ment policies and that because P laintiffs were black, their
employment opportunities had been lim ited”); Taxman v. Board of Education of the Township of Piscataway,
91 F.3d 1547, 1557-58 (3d Cir. 1996) (holding that where Black employees were not underutilized or underrepresented, school district conducting reduction in force cou ld not choose to retain a Black employee instead
of a W hite employee of equal seniority, ability, and qualifications, solely on groun ds of diversity).

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15-VII EQUAL OPPORTUNITY FOR JOB SUCCESS
A.

RACIAL HARASSMENT

Failing to provide a work environment free of racial harassment is a form of discrimination
under Title VII. Liability can result from the conduct of a supervisor, coworkers, or non-employees
such as customers or business partners over whom the employer has control.118
A hostile environment can be comprised of various types of conduct. While there is not an
exhaustive list, examples include offensive jokes, slurs, epithets or name calling, physical assaults
or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and
interference with work performance. The conduct need not be explicitly racial in nature to violate
Title VII’s prohibition against race discrimination, but race must be a reason that the work
environment is hostile.119 To determine if a work environment is hostile, all of the circumstances
should be considered. Incidents of racial harassment directed at other employees in addition to the
charging party are relevant to a showing of hostile work environment.120
There are two requirements for race-based conduct to trigger potential liability for unlawful
harassment: (1) the conduct must be unwelcome; and (2) the conduct must be sufficiently severe
or pervasive to alter the terms and conditions of employment in the mind of the victim and from the

118

For a more detailed discussion of the standards for unlawful harassment, see Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999); Enforcement
Guidance on Harris v. Forklift Sys., Inc. (November 1993); Policy Guidance on Current Issues of Sexual
Harassment (Mar. 1990); 29 C.F.R. § 1604.11.
119

See Aman, 85 F.3d at 1083 (conduct need not be overtly racial in character as long as
harassment was because of race); Policy Guidance on Current Issues of Sexual Harassment, at 19 (Mar. 1990)
(harassment need not be exp licitly sexual, racial, religious, etc. to give rise to Title VII liability as long as it
was because of the protected trait), available at http://www.eeoc.gov/policy/docs/currentissues.html.
120

See Spriggs v. Diam ond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001) (racial harassment
both directed at Plaintiff, and not specifically directed at Plaintiff but part of Plaintiff’s work environment,
could be considered); Schwapp v. Town of Avon, 118 F.3d 106, 111-12 (2d Cir. 1997) (permitting claim of
Black Plaintiff to survive summ ary judgm ent based on racially offensive incidents involving Plaintiff directly,
as well as incidents he was aware of involving other Blacks (some occurring prio r to his employment) and
other minority group s). Courts might give less weight to racially offensive conduct experienced second-hand.
See Singletary v. Missouri Dep’t of Corrections, 423 F.3d 886, 893 (8 th Cir. 2005) (affirming sum mary
judgment for employer in part because racial epithets about Plaintiff were not made in his presence, which
lessened the objective hostility of his work environment); Smith v. Northeastern Ill. Univ., 388 F.3d 559, 567
(7th Cir. 2004 ) (“W e do not m ean to hold that a plaintiff can never demonstrate a hostile work environment
through second-hand com ments or in situations where a plaintiff is not the intended target of the statements.
However, what Weaver personally experienced does not amount to an objectively hostile work environment.
She heard an offensive term directed at a third person once and only learned from others about other offensive
comments directed at third persons.”).

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0092

perspective of a reasonable person in the victim’s position. At this point, the harassing conduct
“offends Title VII’s broad rule of workplace equality.”121
1.

Unwelcome Conduct

The conduct must be unwelcome in the sense that the alleged victim did not solicit or incite
the conduct and regarded it as undesirable or offensive. When the conduct involves mistreatment
or is racially derogatory in nature, unwelcomeness usually is not an issue, even when the alleged
harasser and victim are of the same race.122 Sometimes employers argue that the conduct in question
was not unwelcome because it was playful banter, and the alleged victim was an active participant.
The facts in such cases require careful scrutiny to determine whether the alleged victim was, in fact,
a willing participant.123
2.

Severe or Pervasive

To violate Title VII, racially abusive conduct does not have to be so egregious that it causes
economic or psychological injury.124 At the same time, Title VII is not “a general civility code,”125
and thus conduct is not illegal just because it is uncomfortable, or inappropriate. The “severe or
pervasive” standard reflects what the Supreme Court has called a “middle path” between these
extremes.126
121

Harris v. Forklift Sys., Inc., 510 U .S. 17, 22 (1993 ).

122

See, e.g., Kang v. U. Lim Am erica, 296 F.3d 810, 817 (9th Cir. 2002) (hostile work
environment could be found where Korean supervisor with stereotypical beliefs about the superiority of
Korean workers held Korean Plaintiff to higher standards, required him to work harder for longer hours, and
subjected Plaintiff to verbal and physical abuse when he failed to live up to sup erviso r’s expectations); Ross
v. Dougla s County, 234 F.3d 391, 393 & 395-97 (8 th Cir. 2000) (affirming verdict in favor of Black
employee whose Black supervisor subjected him to racially derogatory slurs, such as the “N-word” and
“black boy,” and referred to the em ployee’s wife, who was W hite, as “whitey”: “S uch co mm ents were
demeaning to Ross. They could have been made to please Johnson’s white superior or they may have been
intended to create a negative and distressing environment for Ross. Wh atever the motive, we deem such
conduct discrim inatory.”).
123

E.g., Vaughn v. Pool Offshore Co., 683 F.2d 922, 924-25 (5th Cir. 1982) (trial court did not
err in finding for employer where plaintiff used racial slurs along with his co-employees, other employees
were subjected to the same obnoxious treatment as plaintiff, his co-workers expressed amicable feelings
towards him, and plaintiff testified at trial that he did not believ e that pranks against him were racially
motivated or that he was singled out for abusive treatm ent).
124

See Harris, 510 U.S. at 22; Meritor Savings Bank, FSB v. Vinson, 477 U .S. 57 (1986).

125

Oncale, 523 U.S. at 80-81.

126

Harris, 510 U.S. at 21 (“Th is standard, which w e reaffirm today, takes a mid dle path between
making actionable any conduct that is merely offensive and requiring the co ndu ct to cause a tangible
psycholog ical injury.”).

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0093

Harassment must be analyzed on a case-by-case basis, by looking at all the circumstances
and the context. Relevant factors in evaluating whether racial harassment creates a sufficiently
hostile work environment may include any of the following (no single factor is determinative):
!

The frequency of the discriminatory conduct;

!

The severity of the conduct;

!

Whether the conduct was physically threatening or humiliating;

!

Whether it unreasonably interfered with the employee’s work performance; and

!

The context in which the harassment occurred, as well as any other relevant factor.

The more severe the harassment, the less pervasive it needs to be, and vice versa.
Accordingly, unless the harassment is quite severe, a single incident or isolated incidents of
offensive racial conduct or remarks generally do not create an abusive working environment.127 But
a single, extremely serious incident of harassment may be sufficient to constitute a Title VII
violation, especially if the harassment is physical.128 Examples of the types of single incidents that
can create a hostile work environment based on race include: an actual or depicted noose or burning
cross (or any other manifestation of an actual or threatened racially motivated physical assault),129
a favorable reference to the Ku Klux Klan, an unambiguous racial epithet such as the “N-word,”130
and a racial comparison to an animal.131 Racial comments or other acts that are not sufficiently
127

See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (199 8) (“‘simple teasing,’ offhand
comm ents, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the
‘terms and conditions of employm ent’”).
128

See Smith v. Sheahan, 189 F.3d 529, 533-34 (7th Cir. 1999) (a sufficiently severe episode
may occur as rarely as once and still violate Title VII).
129

See Reedy v. Quebecor Printing Eagle, Inc., 333 F.3d 906, 909 (8th Cir. 2003) (racially
hateful bathroom graffiti that amounted to death threat aimed at Plaintiff could be fairly characterized as
severe); Williams v. New York City Housing Auth., 154 F. Supp. 2d 820, 824-25 (S.D.N.Y. 2001) (“Indeed,
the noose is among the mo st repugnant of all racist symbols, because it is itself an instrum ent of violence. It
is impossible to appreciate the impact of the display of a noose without understanding this nation’s
opprobrious legacy of violence against African-A mericans.”); cf. Jackson v. Flint Ink North Am. Corp., 379
F.3d 791, 795 (8th Cir. 2004) (in racial discrimination case invo lving graffiti depicting a burning cross, court
noted that because “its symbolism is potentially more hostile and intimidating than the racial slurs[,] [e]ven
a single instance of workplace graffiti, if sufficiently severe, can go a long w ay tow ard making out a Title VII
claim”), rev’d on reh’g on other grounds, 382 F.3d 869, 870 (8th Cir. 2004).
130

Cf. Spriggs, 242 F.3d at 185 (“Far more than a m ere offensive utterance,” the N-wo rd is “pure
anathema to African Am ericans. Perhaps no single act can more quickly alter the conditions of employment
and create an abusive working environment than the use of an unambiguo usly racial ep ithet such as ‘n-----’
by a su pervisor in the presence of his subord inates.”) (citation and quotation m arks om itted).
131

In an amicus curiae brief in Oates v. Discovery Zone, 116 F.3d 1161 (7th Cir. 1997), the
Commission argued that a Black employee provided sufficient evidence of racial harassment where he

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severe standing alone may become actionable when repeated, although there is no threshold magic
number of harassing incidents giving rise to liability.132 Moreover, investigators must be sensitive
to the possibility that comments, acts, or symbols that might seem benign to persons of the
harasser’s race could nevertheless create a hostile work environment for a reasonable person in the
victim’s position.133
Below are examples designed to explain the concept of conduct sufficiently “severe or
pervasive” to alter someone’s working conditions.
EXAMPLE 15
SUFFICIENTLY SEVERE CONDUCT
Tim, an African American, is an employee at an auto parts
manufacturing plant. After a racially charged dispute with a White
coworker, the coworker told Tim: “Watch your back, boy!” The next
day, a hangman’s noose, reminiscent of those historically used for
racially motivated lynchings, appeared above Tim’s locker. Given
the violently threatening racial nature of this symbol and the context,
this incident would be enough to alter Tim’s working conditions.134

complained to his supervisor that a picture of gorillas with his name written on it was racially offensive, and
his supervisor laughed at his complaint, refused to take the picture down, and allowed it to remain on display
for a week after his complaint. The Seventh Circuit did not reach the m erits of the Commission’s argu ment,
finding that the plaintiff had waived his racial harassment claim by not alleging it in his complaint. Id. at
1168. One mem ber of the panel, however, noted that “[h]ad it been properly before the district court, I agree
with the amicus brief filed by the Equal Employment Opportunity Commission that it would not have been
a prop er candidate for summary judgment.” Id. at 1177 (Wood, J., concurring in part and dissenting in part).
A
copy
of
the
Comm ission’s amicus
curiae
b r i ef
i s a v ai l a b le
at
http://www.eeoc.gov/briefs/oates_v_discovery.txt. See also Spriggs, 242 F.3d at 185 (“To suggest that a
human being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the m erely
unflattering; it is degrading and humiliating in the extreme.”).
132

The character of the comments or acts is important in determining the frequency need ed to
alter som eone’s w orking cond itions. See, e.g., Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 1047 (7 th
Cir. 2002) (no magic number of offen sive comments needed; unam bigu ous racial epithets fall on the m ore
severe end of the spectrum ). See also Example 16 and accompanying note 135, infra.
133

Cf. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 824 (4th Cir. 2004) (Gregory, Circuit Judge,
concurring in the judgment) (“While many Southerners unquestionably embrace the [Confederate] flag, not
out of malice or continued belief in racial subo rdination, but out of genuine respect for their ancestors, we
must also acknowledge that some minorities and other individuals feel offended, threatened or harassed by
the sy mbol.”). See also discussion of “co de w ords,” at note 47, supra.
134

See supra notes 129-131 and accompanying text.

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EXAMPLE 16
SUFFICIENTLY PERVASIVE CONDUCT
Miyuki, of Japanese descent, gets a job as a clerk in a large general
merchandise store. After her first day on the job, a small group of
young male coworkers starts making fun of her when they see her by
slanting their eyes, or performing Karate chops in the air, or
intentionally mispronouncing her name. This occurs many times
during her first month on the job. This is pervasive harassment
because of race and/or national origin.135
EXAMPLE 17
CONDUCT NOT SUFFICIENTLY SEVERE OR PERVASIVE
Steven, an African American, is a librarian at a public library. Steven
approaches his supervisor, White, with the idea of creating a section
in the stacks devoted to books of interest particularly to African
Americans, similar to those he has seen in major bookstore chains.
Steven’s supervisor rejects the idea out of hand, stating that he does
not want to create a “ghetto corner” in the library. This statement
alone, while racially offensive, does not constitute severe or
pervasive racial harassment, absent more frequent or egregious
incidents.136
EXAMPLE 18
SUFFICIENTLY SEVERE OR PERVASIVE CONDUCT
Patrick, Caucasian, is a new employee in a company owned by an
African American. All of the employees in Patrick’s department,
including his manager, also happen to be African American.
Patrick’s manager was pressured to hire Patrick because his father is
a friend of a company executive. On Patrick’s first day on the job,
the manager said to him, “This is a Black company. Whiteboys like
135

Compare with, e.g., Mana tt v. Bank of America, 339 F.3d 79 2 (9th Cir. 2003) (Asian
Plaintiff’s working environment was not so objectively abusive as to alter the conditions of her employment
where, over a two-and-a-half year period, harassment consisted of: two offensive and inappropriate incidents
(one in which two co-workers cruelly ridiculed Plaintiff for mispronouncing a word, and another instance in
which co-workers pulled their ey es back w ith their fingers in an attempt to imitate or mock the appearance
of Asians), as well as other offhand rem arks by her cow orkers and supervisors (Plaintiff overheard jokes in
which the phrase ‘China man’ was used, and overheard a reference to China and communism); the court noted
that the incidents occurred over a span of two-and-a-half years and that if they had occurred over a shorter
period of time or been repeated more frequently, Plaintiff “may very well have had an action able hostile
environment claim”).
136

Com pare with, e.g., Reedy, 333 F.3d at 908-09 (working environment of Plaintiff, Black, was
so objectively abusive as to alter the conditions of his employment where, over a seven-month period
coworkers called him and other Black employees “n------” on num erous occasions and threatened them w ith
violence, and the company allowed racial slurs, pictures, and threats to linger in the men ’s bathroom).

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you might get all the breaks in your world, but not here. Your daddy
got you this job, but he can’t do it for you.” Although Patrick made
every effort to prove himself, he was unable to do so because over the
course of the next six months the manager subjected him to a pattern
of mistreatment. For example, the manager would assign Patrick the
majority of the uninteresting and routine work, and would set
artificial and unrealistic deadlines. The manager would yell at
Patrick when he made a mistake due to having to rush. The manager
also frequently failed to inform Patrick of important meetings, or
ignored Patrick when he spoke at meetings he did attend. Once the
manager asked Patrick to get him a cup of coffee – a task not part of
his job, and which no one else ever was asked to do – and said to
him, “By the way, as you’ve probably guessed, I like my coffee
black.” In contrast to the manager’s treatment of Patrick, the
manager assigned Patrick’s coworkers – all African American –
challenging assignments, provided them with coaching and training,
and often extended their work deadlines. The totality of the evidence
supports the conclusion that Patrick suffered from race-based
harassment sufficient to alter his working conditions.137
EXAMPLE 19
SUFFICIENTLY SEVERE OR PERVASIVE CONDUCT
Kyra is a newly hired programer at a computer software development
company. She is the first African American, and the first woman, to
be hired by the company. All of the other employees are White or
Asian American men. During her first few weeks on the job, several
employees made insensitive comments to her. For example, one of
her coworkers told her, “You’re so articulate for a Black person.”
Kyra also overheard a conversation between a group of coworkers in
which one said, “I didn’t know Oprah could write code,” to which the
group responded with laughter. Her team leader said to her, “I know
you got this job because you’re a ‘twofer’ under our new affirmative
action program, but you won’t get any breaks here.” Over her first
few weeks, Kyra learned that the team leader held her to more
exacting standards than her newly hired White and Asian American
counterparts. While normally each programer’s work was reviewed
once by management to look for bugs – a process the company called
“code review” – the computer code Kyra wrote was put to an extra
round of code review, without any evidence that it was warranted.
137

See Aman, 85 F.3d at 1078-84 (reasonable jury could find two Black employees were
subjected to racially hostile environment where managers and coworkers repeatedly made coded racial
remarks, and managers required them to do menial tasks outside their job description, yelled at them, and
made their jobs m ore difficult by withholding necessary information, refusing to deal with them, and falsely
accusing them of misco nduct).

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After the first project Kyra was assigned to work on was complete,
Kyra had trouble getting assigned to another project because other
team leaders incorrectly assumed that Kyra’s work was substandard.
When she raised the issue with management, she was told that the
company had always had a word-of-mouth assignment system, and
she needed to learn how to “play with the boys.” The evidence
supports the conclusion that Kyra was subjected to a hostile work
environment because of her race, sex, or the intersection of both, in
light of the pattern of offensive comments and evidence that the bias
altered the terms and conditions of Kyra’s employment.
3.

Employer Liability

Employers and employees each have an essential role in preventing race harassment. When
employers and employees both take appropriate steps to prevent and correct harassment, offensive
conduct generally will be corrected before escalating to the point of violating Title VII.
Conduct of Supervisors
The rules for liability differ depending on whether the harasser is a supervisor. An
individual qualifies as an employee’s supervisor if the individual has authority to undertake or
recommend tangible employment decisions affecting the employee, or the individual has authority
to direct the employee’s daily work activities.138 As a general rule, employers are responsible for
the behavior of their supervisors because employers act through their supervisors.
Thus, any time discrimination by a supervisor results in the victim suffering a tangible
employment action, such as being fired (or quitting in response to intolerable harassment
accompanied by an official company act),139 demoted, not promoted, or docked in pay, the employer
is automatically liable, and there are no defenses available to the employer. For example, if a
supervisor has a racially motivated grudge against an employee and acts on it by denying the
employee a raise otherwise deserved under the employer’s pay system, the employer would be
automatically liable and no defense would be available.

138

See Enforcement Guidance: Vica rious Employer Liability for Unlawful Harassment by
Supervisors, § III (June 1999). The Guidance also states the Com mission’s position that even if the harasser
had no actual supervisory pow er over the employ ee, the employ er will be subject to vicarious liability if the
employee reasonably believed that the harasser had su ch authority. But, if the harasser had no actual
supervisory authority over the employee and the employee did not reasonably believe that the harasser had
such authority, then the standard of liability for co-wo rker harassm ent ap plies. Id.
139

The Supreme C ourt has held that a claim for constructive discharge is available u nder Title
VII when the harassment is so egregious or intolerable that quitting is a fitting response, and no affirmative
defense is available when the constructive discharge is caused by an official company act, such as when a
person quits in respo nse to a humiliating demotion, an extreme cut in pay, or a tran sfer to a position that is
unb earab le. See Penn sylvania State Police v. Suders, 542 U.S. 129 (200 4).

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There is an exception to the general rule that applies when the supervisor’s harassment was
not tangible – i.e., the case involves a hostile work environment instead of a firing, demotion, pay
cut, etc. In this situation, the employer avoids liability if it proves the elements of the following
affirmative defense:
!

The employer exercised reasonable care to prevent and correct promptly any
harassing behavior; and

!

The employee unreasonably failed to take advantage of any preventive or corrective
opportunities provided by the employer or to avoid harm otherwise.140
EXAMPLE 20
EMPLOYER NOT LIABLE FOR UNLAWFUL
HARASSMENT BY A SUPERVISOR
Carla, an Asian American, claims that she was subjected to frequent
offensive comments based on race and sex by her first-level
supervisor. Carla was aware of the employer’s anti-harassment
complaint procedures, but did not notify her employer; nor were there
extenuating circumstances explaining her failure to follow the
employer’s procedures. The employer learned of the harassment
from Carla’s coworker, and immediately conducted an investigation.
The employer reprimanded the supervisor and transferred him to
another division. The employer is not liable for the harassment
because it took reasonable preventative and corrective measures and
Carla unreasonably failed to complain about the harassment.141

For a full discussion of the affirmative defense for supervisory harassment, see Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 1999),
available at http://www.eeoc.gov/policy/docs/harassment.html.

140

See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (199 8); Faragher, 524 U.S. at 807.
The failure to complain is not necessarily fatal if it was not unreasonable – for example, if the victim can
establish that he or she reasonably believed, based on evidence (not mere speculation), that a complaint would
result in retaliation, or that there were obstacles to making or filing a com plaint, or that the employer’s
complaint mechanism otherwise was ineffective.
141

Com pare with, e.g., Spriggs, 242 F.3d at 188-89 (jury could conclude that employer did not
meet duty to prevent and correct supervisor’s racial harassment: Black Plaintiff complained to management
that his W hite supervisor repeatedly used epithets such as “n-----” and “monkey” to describe Plaintiff and
Blacks generally, as well as to describe the supervisor’s own wife (who was Black), but management
downplayed the complaints, tried to defend the conduct, or responded with indifference, and thus the conduct
continu ed).

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Conduct of Owner, President, Partners, or Officers
If the harasser is of a sufficiently high rank to fall “within that class . . . who may be treated
as the organization’s proxy,”142 the employer cannot raise the affirmative defense even if the
harassment did not result in a tangible employment action. Examples of officials who qualify as
“proxies” or “alter egos” include a president, an owner, partners, and corporate officers.
Conduct of Co-Workers and Non-Employees
For the unlawful harassing conduct of non-supervisory employees, or non-employees over
whom the employer has control (e.g., independent contractors or customers on the premises), the
employer will be liable if it knew or should have known about the conduct and failed to take prompt
and appropriate corrective action.143 This means that an employer should have an anti-harassment
policy and complaint procedure and should be vigilant enough to detect harassing conduct that it
reasonably should know about even without a complaint.144 It should also create an environment
in which employees feel free to raise concerns, and are confident that those concerns will be
addressed. Victims of harassment, in turn, should make sure management knows about the
harassing conduct.
EXAMPLE 21
EMPLOYER LIABLE FOR UNLAWFUL HARASSMENT
BY A NON-EMPLOYEE OVER WHOM IT HAS CONTROL
Charles is a frequent visitor on XYZ Senior Community’s
“neighborhood days,” when XYZ allows senior citizens in the
neighborhood to visit its residents. During his visits, Charles often
yells derogatory comments about Blacks and Latinos at Cheryl, a
Black employee of Puerto Rican national origin, and has even pushed
and tripped her on a few occasions. Cheryl complains about the
conduct to a manager, and is told that XYZ cannot take any action
against Charles because he is not a resident. On subsequent visits,
Charles continues to yell racial and ethnic slurs at Cheryl, and she
files an EEOC charge. XYZ is liable for the actions of Charles, a
non-employee, because it had the power to control Charles’s access

142

Faragher, 524 U.S. at 789-90.

143

See, e.g., Reedy, 333 F.3d at 910 (reversing sum mary judgm ent for employer because “Reedy
offered sufficient ev idence that Quebecor knew or should have known about the harassment but failed to take
prom pt and effective rem edial action”).
144

See, e.g., Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1278-79 (11th Cir. 2002) (under
circuit precedent the employer did not have actual notice that Mexican employee was being called epithets
such as “Julio,” “taco,” and “sp--,” but there was “ample eviden ce” that it had constructive notice: harasser’s
supervisor’s office was located in the department where much of the abuse occurred; and the abuse occurred
up to three to four times each day and in the presence of others).

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to the premises, was aware of Charles’s offensive conduct, and did
not take corrective action.
B.

RACIAL BIAS IN OTHER EMPLOYMENT TERMS AND CONDITIONS

Even if a company works hard to recruit and hire in a way that provides equal opportunity,
and even if it maintains a harassment-free workplace, it still must ensure that race is not otherwise
a barrier to employee success. Employers cannot permit race bias to affect work assignments,
performance measurements, pay, training, mentoring or networking, discipline, or any other term,
condition, or privilege of employment.145
1.

Work Assignments

Work assignments are part-and-parcel of employees’ everyday terms and conditions of
employment and are also important for gaining valuable on-the-job experience. Work assignments
must be distributed in a nondiscriminatory manner. This means that race cannot be a factor in
determining the amount of work a person receives, or in determining who gets the more, or less,
desirable assignments.
EXAMPLE 22
WORK ASSIGNMENTS
After receiving an advanced business degree, Mary was hired as an
entry-level associate at a management and technology consulting
firm. She was the only Black associate among the new entry-level
associates. Most of the firm’s managers are White males. Initially,
as with other new associates, Mary received routine assignments, and
consistently met the expectations of the assigning managers. But as
other associates became increasingly busy with complex, long-term
projects, Mary noticed that she continued to receive projects that
were short-term and routine. At her six-month performance review,
the firm told Mary that her performance was good, and she received
a bonus on par with other associates. She told the reviewers that she
would like to receive more demanding work. Nevertheless, Mary’s
difficulty getting choice assignments became compounded in the
remaining half of the year as managers gave important work to those
associates who had successfully handled it for them in the past. This
happened despite Mary’s repeating on several occasions her request
for more challenges. After a year at the firm, it was clear that her
contemporaries had much higher standing in the firm than she did, as
reflected in the low pay raise she received as compared to others.
145

See 42 U .S.C. § 2000e-2(a)(1) (unlaw ful “to discrim inate . . . with respect to . . .
compensation, terms, conditions, or privileges of employment”); Section 2: Threshold Issues, EEOC
Comp liance Manual, § 2-II.B.1, available at http://www.eeoc.gov/policy/docs/threshold.html; Section 613:
Terms, Conditions and Privileges of Employment, EEO C Compliance M anual, Volum e II.

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Mary opted to seek a fresh start with another firm. Soon after, Mary
filed a charge against the employer alleging race discrimination in the
terms and conditions of her employment. The employer cannot offer,
and the investigation does not reveal, a credible nondiscriminatory
explanation for Mary’s treatment. Thus, the evidence suggests that
race bias affected how managers assigned Mary work, which in turn
stalled her career development and affected her pay.146
2.

Performance Evaluations

Performance evaluations frequently serve as the basis for numerous other employment
decisions, such as pay, promotions, and terminations. They should be unaffected by race bias.
EXAMPLE 23
PERFORMANCE EVALUATIONS
Daniel is a customer service representative, and the only African
American in his unit. Until recently he has received uniformly stellar
performance ratings, received performance awards, and earned a
good reputation among his customers and colleagues. Things began
to change, however, when a new supervisor was assigned a year ago
to manage his unit. While Daniel had long been rated one of the best
employees, the new supervisor began rating Daniel as below average,
which has affected Daniel’s quarterly bonuses. He files a charge
alleging race discrimination. A review of the performance
evaluations of Daniel and others in his unit reveals that while
Daniel’s overall performance rating has dropped markedly, the
ratings of his counterparts have gone up. Significantly, on the most
objective part of his performance evaluation – “quantity of results,”
which measures the number of accounts serviced – Daniel was rated
below average when in actuality he serviced more accounts than
persons with higher ratings in this performance category. In addition,
there is evidence that the supervisor undermined Daniel’s
professional standing with customers – for example, by taking over
meetings Daniel was supposed to lead, and refusing to correct a
customer’s clearly mistaken belief that Daniel was responsible for an
error. This treatment is markedly different than that of Daniel’s
colleagues.
The investigation reveals no evidence of a
nondiscriminatory reason – such as a pure personality clash (i.e., one

146

Cf. Herrnreiter v. Chicago Housing Authority, 315 F.3d 742, 744-45 (7th C ir. 2002) (in this
circuit, among the employment actions an em ployee m ay challenge are those that “reduce the em ployee’s
career prospects by preventing him from using the skills in which he is trained and experienced, so that the
skills are likely to atrophy and his career is likely to be stunted”).

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not rooted in the alleged bias)147 – that explains Daniel’s treatment.
There is reasonable cause to believe Daniel’s performance
evaluations, and thus his pay, were racially discriminatory. 148
3.

Training and Constructive Feedback

Training is important for employees to become proficient in their jobs and to prepare for
advancement. This includes both formal training and informal training through feedback from
supervisors. As with other aspects of the employment relationship, race cannot be a factor in who
receives training and constructive feedback.
EXAMPLE 24
TRAINING AND CONSTRUCTIVE FEEDBACK
Tina, a brown-skinned woman of Mexican descent, is a new office
clerk. Her primary duties are to sort and file purchase orders and
invoices. Within a few weeks, it is clear to the employer that Tina is
processing her purchase orders and invoices too slowly due to
mistakes. The employer terminates Tina, who then files a charge
alleging race discrimination. The investigation reveals that although
White employees who perform at a substandard level are coached
toward increasingly good performance, Tina and other employees of
color get less feedback and thus tend to repeat mistakes and make
new ones that could have been avoided. The evidence establishes
that the employer unlawfully terminated Tina.149

147

See supra note 38, regarding “personality conflict” as a potential mask for unconscious bias.

148

See Thomas, 183 F.3d at 62-65 (denying summary judgment for employer because reasonable
person could conclude Plaintiff’s layoff was based on racially biased performance evaluations: after a new
supervisor was hired, Plaintiff, the office’s only African American customer service representative, went from
being one of the highest rated employees to one of the lowest rated, and the evidence suggested that the new
supervisor deliberately undermined Plaintiff’s work, rated Plaintiff harsher than W hites, and that Plaintiff’s
earlier high ratings were mo re accurate).
149

See Vaughn v. Edel, 918 F.2d 517, 522 (5th Cir. 1990) (suit by Black female terminated as
part of cost-cutting staff reductions; company had refrained from criticizing, counseling, or giving poor
performance ratings to Plaintiff for fear of triggering a charge of discrimination; court upheld company
liability because evidence established that if Plaintiff were White the company would not have inflated her
performance ratings and would have criticized and counseled her, all of which would have given her an equal
chance to improve to a level that w ould have prevented her term ination). Similarly, it would violate Title VII
to avoid hirin g Blacks or other people of color for fear that a later employment decision (e.g, discipline,
nonpromotion, layoff) might trigger a discrimination charge.

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4.

Workplace Networks

Informal workplace networks can be just as important to an organization as official job titles
and reporting relationships. Thus, an employee’s success may depend not only on his or her job
duties, but also on his or her integration into important workplace networks. Employers cannot
allow racial bias to affect an employee’s ability to become part of these networks.
EXAMPLE 25
WORKPLACE NETWORKS
Suhail, of Arab descent, works for a computer software company.
The company thrives on active socializing between employees and
decisionmakers both on and off the job – from lunch outings, afterwork happy hours and weekend golf outings, to children’s birthday
parties and family barbeques. Many employees establish strong
relationships with decisionmakers through these informal networks,
and as a result, tend to get put on the plum projects and get the plum
promotions.
Suhail has experienced difficulty in building
relationships with decisionmakers because he often receives
invitations late or indirectly from peers, rather from the
decisionmakers themselves. After being passed over for several
important projects, Suhail files a charge alleging race/national origin
discrimination because he believes he is being excluded from his
workplace network for reasons related to his Arab descent. Suhail’s
exclusion would be actionable if it affects the terms and conditions
of his employment.150
5.

Appearance and Grooming Standards

Appearance standards generally must be neutral, adopted for nondiscriminatory reasons,
consistently applied to persons of all racial and ethnic groups, and, if the standard has a disparate

150

Cf. Firefighters Institute for Racial Equa lity v. City of Saint L ouis, 549 F.2d 506, 514-15 (8th
Cir. 1977) (City was liable under Title VII for W hite firefighters’ exclusion of Blacks from their “supper
clubs,” informal eating arrangements among on-duty firefighters at firehouses using employer-provided
cooking facilities; court ordered Fire Department to issue regulations prohibiting segregated use of C ity
kitchen facilities such that City “may comport with its duty to provide a nondiscriminatory working
environment,” adding that “the inclusion of Blacks and the reduction of racial tension in firehouses cannot
help but aid the City as an employer where the job at hand requires the close cooperation of its employees
and a concerted team effort”); Meritor, 477 U.S. at 65-66 (citing Firefighters with approval). But cf.
Domingo v. New England Fish Co., 727 F.2d 1429, 1438 (9th Cir. 1984) (holding rationale of Firefighters
inapplicable because, while seating in Alaska cannery mess hall was racially segregated, there were no
employer seating restrictions, and plaintiffs failed to offer evidence that their segregated eating was not by
choice).

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impact, it must be job-related and consistent with business necessity. 151 The following are examples
of areas in which appearance standards may implicate Title VII’s prohibition against race
discrimination:
!

Height and Weight: Standards for height and weight sometimes are challenged as
having an unlawful adverse impact. For example, a requirement that employees be
at least six feet tall might have an adverse impact on Asian Americans due to average
height and weight differences, and thus such a requirement would need to be jobrelated and consistent with business necessity. 152

!

Dress: An employer can impose the same dress code on all workers in similar jobs,
regardless of their race or ethnicity, as long as the policy was not adopted for
discriminatory reasons and is enforced evenhandedly. However, an employer must
treat racial or ethnic attire that complies with the dress code the same as other attire
that complies with the dress code.153 For example, Title VII prohibits employers
from banning the wearing of traditional Hawaiian dress that complies with the
employer’s dress code requirements.

!

Hair: Employers can impose neutral hairstyle rules – e.g., that hair be neat, clean,
and well-groomed – as long as the rules respect racial differences in hair textures and
are applied evenhandedly. For example, Title VII prohibits employers from
preventing African American women from wearing their hair in a natural, unpermed
“afro” style that complies with the neutral hairstyle rule. Title VII also prohibits
employers from applying neutral hairstyle rules more restrictively to hairstyles worn

151

Employer appearance and grooming standards also may raise discrimination issues with
respect to other protected bases, such as national origin, gender, or religion. When an employee’s dress or
appearance is religiously-based, an employer has an affirmative duty to accommod ate the em ployee’s
religious beliefs, unless doing so would pose an undue hardship. For a detailed discussion of religious
accommodation and undue hardship, refer to 29 C.F.R. § 1605.2.
152

See Officers for Justice v. Civil Service Comm’n of City and County of San Francisco, 395
F. Supp. 378, 380-81 (D.C. Cal. 1976) (granting preliminary injunction eliminating pre-selection requirement
of a height of 5 ft. 6 in. for certain police officers; holding plaintiffs were likely to succeed at trial on
argument that the requirement had a disparate impact on Asian Am ericans, Latin os, and fem ales, and the city
was unlikely to be able to demon strate job relatedness and business necessity), cited w ith approval in Dothard
v. Rawlinson, 433 U.S. 321, 332 n.15 (1977) (height and weight requirement had disparate impact on
women).
153

By the same token, an employee whose clothing complies with the dress code cannot be
forced to wear cultural attire. See Bryant v. Begin Manage Program, 281 F. Supp. 2d 561 (E.D.N.Y. 2003)
(reasonable jury could find race discrim ination where Plaintiff, an A frican Am erican who wore business suits
on “casual days,” was pressured by her African American supervisor to wear afro-centric clothing even
though the dress code made no mention of afro-centric clothing, and Plaintiff was replaced by an African
Am erican w ho did wear afro-centric attire).

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by African Americans.154
!

Beards: Employers generally can require employees to be clean-shaven. However,
Title VII requires an employer to make exceptions to a no-beard policy for men with
pseudofolliculitis barbae, an inflammatory skin condition that occurs primarily in
Black men and that is caused by shaving, unless being clean-shaven is job-related
and consistent with business necessity (see Example 9 and accompanying footnote).

6.

Compensation

Employees must receive compensation without regard to race. All forms of compensation
are covered, such as salary, overtime pay, bonuses, stock options, expense accounts, commissions,
life insurance, vacation and holiday pay, and benefits.
EXAMPLE 26
COMPENSATION
Andrew Kim, of Korean descent, alleges that he is being
discriminatorily paid less than his White counterparts. The employer
cites Kim’s performance as the reason for his lower pay. The
investigator then compares the compensation of Kim and similarly
situated employees, according to the factors the employer says go
into salary (experience (“Exp.”) and performance rating (“Perf.”)):
Salary

Salary
Factors

$28,000

Exp. = 3 yrs
Perf. = 3

Salary

Smith

$31,000

Exp. = 3 yrs
Perf. = 4

$34,000

Exp. = 5 yrs
Perf. = 4

Adams

Kim (CP)

Not in
Protected
Class

Thomas

Protected
Class

Salary
Factors

$37,000

Exp. = 5 yrs
Perf. = 5

154

See Hollins v. Atlantic Co., Inc., 188 F.3d 652, 661 (6th Cir. 1999 ) (court held a reaso nable
jury could find Title VII violation where company prev ented Black female from wearing hair in a “finger
waves” hairstyle and in other hairstyles deemed “too eyecatching,” while not subjecting W hite women to such
standards, and even though the com pany admitted Plaintiff’s h airstyles complied w ith company policy that
hairstyles be neat, well-groomed, and safe); Rogers v. American Airlines, 527 F. Supp. 229, 232-34 (S.D.N.Y.
1981) (holding that a neutral employer policy against women wearing braids or cornrows was not a racebased distinction, and thus such a policy would violate Title VII only if it had a disparate impact on Black
wom en and was not job-related and consistent with business necessity, or if the policy were applied in a
discriminatory manner; the court also stated in dicta that an employer policy banning “afro” hairstyles likely
would be a race-based distinction in violation of Title VII because, unlike braids or cornrow s, an “afro” is
the product of natural hair growth rather than artifice).

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The employer’s explanation for Kim’s salary is credible because it
accounts for the pay disparity. While Kim has the same amount of
experience as Smith, Kim’s performance rating is one point lower.
There is no evidence that the performance rating itself was
discriminatory. The $3000 difference between the pay of Kim and
Smith is in line with the $3000 differences between the pay of Smith
and the other non-Asian American employees. The evidence does
not indicate discrimination.
For further information on discrimination in compensation, see
Section 10: Compensation Discrimination (2000), available at
http://www.eeoc.gov/policy/docs/compensation.html.
7.

Discipline and Discharge

Discipline and discharge decisions are typically based on either employee misconduct or
unsatisfactory work performance. Such rules and policies regarding discipline and discharge must
be enforced in an evenhanded manner, without regard to race.
EXAMPLE 27
DISCIPLINE AND DISCHARGE
Monica, a Filipino sales representative, is the only person of color in
her district. Monica’s job requires that she travel to the offices of
clients and potential clients to market company products. Company
policy requires sales representatives to be in the field from 8:30 a.m.
to 5:30 p.m., and that they make sales calls on at least seven clients
each and every day. Actual practice, however, is different. Most
sales representatives “bank” their sales calls so that if they have a
particularly productive day, they record the “extra” sales calls as
occurring on a less productive day. When Monica learns that the
practice is common among sales representatives, she begins to do it
too, because she likes the flexibility that it offers. Things change
after the company assigns a new District Manager to Monica’s
district. The new manager tells Monica that “banking” sales calls is
against policy and that he intends to ask the Regional Manager for
permission to discipline Monica, which would deny her a bonus and
make her a candidate for layoff. When Monica protests that other
sales representatives in her district use the same practice, her
supervisor feigns ignorance and does nothing about it. The Regional
Manager approves the discipline based upon the District Manager’s
recommendation. Monica files a charge alleging race discrimination.
The investigation does not reveal a credible and persuasive
nondiscriminatory explanation for what otherwise appears to be a

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racial double standard. Thus, it is likely that Monica’s discipline was
racially motivated, in violation of Title VII.155
C.

RETALIATION

Employees have a right to be free from retaliation for their opposition to discrimination or
their participation in an EEOC proceeding by filing a charge, testifying, assisting, or otherwise
participating in any manner in an investigation, proceeding, or hearing under Title VII.156 There are
three essential elements of a retaliation claim:
!

Employee Protected Activity – opposition to discrimination or participation in the
statutory complaint process;

!

Employer Adverse Action – any adverse treatment (beyond a petty slight or a trivial
annoyance) that is based on a retaliatory motive and is reasonably likely to deter
protected activity; and

!

Causal Connection – between the protected activity and the adverse action.
EXAMPLE 28
RETALIATION
Pedro files a charge alleging discrimination because of his race,
Black, and his national origin, Dominican. In the months following
his charge, Pedro begins receiving less and less overtime work. He
files another charge alleging that the denial of overtime is retaliatory.
The employer states that Pedro was not assigned overtime because
there is less work. The investigation reveals no significant change in
the amount of overtime available before and after Pedro’s charge.
Other employees with similar qualifications as Pedro have continued
to be assigned overtime at approximately the same rate. These facts
establish that Pedro has been subjected to retaliation for filing a
charge, in violation of Title VII.

155

See Ellerth, 524 U.S. at 762 (company may be vicariously liable for tangible employment
action taken after review by higher level supervisors; citing with approval Shager v. Upjohn Co., 913 F.2d
398, 405 (7th C ir.199 0) (comm ittee was unaware of discriminatory animus driving supervisor’s
recommendation, but company was liable because the committee “acted as the conduit of [the supervisor’s]
prejudice – his cat's paw ”)).
156

See 42 U.S.C. § 2000e-3(a). See John son v. Un iversity of Cincinnati, 215 F.3d 561, 579-81
(6th Cir. 2000) (affirmative action official who alleged discrimination not based on his status as an African
American, but based on his advocacy for increased employment opportunities for minorities and women,
could bring a claim under §704(a) of Title VII for retaliation). The other statutes enforced by E EOC also
prohibit retaliation. See 29 U .S.C. § 623(d) (AD EA ); 42 U.S.C. §§ 12203(a), (b) (ADA); 29 U.S.C.
§ 215(a)(3) (Equal Pay A ct).

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For a detailed discussion of the prohibition against retaliation, refer to Section 8: Retaliation, EEOC
Compliance Manual (1998), available at http://www.eeoc.gov/policy/docs/retal.html.

15-VIII REMEDIES
In a disparate treatment case, the statute allows the following remedies (as applicable):
injunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, attorney’s fees
and costs, compensatory damages for any past or future out-of-pocket losses and any emotional
harm, and punitive damages if the employer acted with malice or with reckless indifference to the
individual’s federally protected rights. Punitive damages are unavailable against a federal, state, or
local government employer.
The law places caps on the sum of compensatory and punitive damages for which an
employer may be liable. The caps are based on the size of the employer’s workforce:
!

Employers with 15 - 100 employees: up to $50,000

!

Employers with 101 - 200 employees: up to $100,000

!

Employers with 201 - 500 employees: up to $200,000

!

Employers with 501 or more employees: up to $300,000

See 42 U.S.C. § 1981a(b). The caps apply to the sum of: punitive damages, and compensatory
damages for emotional harm and future pecuniary losses. The caps do not apply to back pay and
interest on back pay, front pay, or past pecuniary losses.157 For further information, see Enforcement
Guidance: Compensatory and Punitive Damages Available Under §102 of the Civil Rights Act of
1991 (1992), available at http://www.eeoc.gov/policy/docs/damages.html.
In a “mixed motives” case, in which an employment decision was motivated in part by race
but the employer proves it also was motivated in part by a nondiscriminatory reason that would have
resulted in the same decision by itself, Title VII still is violated but the remedies available are
limited. The law allows declaratory relief, injunctive relief, and attorney’s fees and costs, but not
reinstatement, hiring, back pay, or compensatory or punitive damages.158
In an “after-acquired evidence” case, in which an employment decision was motivated by
race but the employer proves that it subsequently discovered evidence of the applicant’s or
employee’s wrongdoing that would have led to a similar decision on legitimate grounds even absent

157

The caps on damages do not apply to suits filed under 42 U.S.C. § 1981, which also proh ibits
race discrimination in employment. See supra note 9.
158

See 42 U .S.C. § 2000e-2(m ) (proof that race w as motivating factor establishes unlawful
employment practice, even though other factors also motivated the practice); 42 U.S.C. §2000e-5(g)(2)(B)
(limiting remedies when employer demonstrates that it would have taken same action in the absence of the
impermissible m otivating factor).

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discrimination, Title VII still is violated. However, the remedies available are limited as follows:
back pay is generally limited to the period from the date of the unlawful employment action to the
date that the misconduct was discovered, compensatory damages are typically excluded for out-ofpocket losses incurred after the date that the evidence of wrongdoing was discovered, and
reinstatement (or instatement) and front pay are not available. Other remedies, including
compensatory damages for emotional harm and punitive damages, are not affected. For a fuller
discussion of after-acquired evidence, see Enforcement Guidance on After-Acquired Evidence and
McKennon v. Nashville Banner Publishing Co. (1995), av ailable at
http://www.eeoc.gov/policy/docs/mckennon.html.
In a disparate impact case, in which a policy or practice has a significant disparate impact
but cannot be justified by job-relatedness and business necessity, the employee is entitled to
injunctive relief, reinstatement, front pay (until or in lieu of reinstatement), back pay, and attorney’s
fees and costs. Compensatory damages and punitive damages are not available in disparate impact
cases.159

15-IX

LPROACTIVE PREVENTION 7

The following are examples of best practices for employers – proactive measures designed
to reduce the likelihood of Title VII violations and to address impediments to equal employment
opportunity.
General
!

Develop a strong EEO policy that is embraced by the CEO and top executives,
train managers and employees on its contents, enforce it, and hold company
managers accountable.

!

Make sure decisions are transparent (to the extent feasible) and documented.
The reasons for employment decisions should be well explained to affected persons.
Make sure managers maintain records for at least the statutorily-required periods.

Recruitment, Hiring, and Promotion
!

Recruit, hire, and promote with EEO in mind, by implementing practices designed
to widen and diversify the pool of candidates considered for employment openings,
including openings in upper-level management.

!

Monitor for EEO by conducting self-analyses to determine whether current
employment practices disadvantage people of color, treat them differently, or leave
uncorrected the effects of historical discrimination in the company.

159

See 42 U .S.C. § 1981a(a)(1) (com pensatory and punitive damages not available for “an
employm ent practice that is unlaw ful becau se of disparate impact”).

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!

Analyze the duties, functions, and competencies relevant to jobs. Then create
objective, job-related qualification standards related to those duties, functions,
and competencies. Make sure they are consistently applied when choosing among
candidates. Identify and remove barriers to EEO – such as word-of-mouth
recruiting in a workforce that does not reflect the diversity of the qualified labor
market, or employment tests – if they cannot demonstrably be tied to job
performance and business necessity.

!

Develop the potential of employees, supervisors, and executives with EEO in mind,
by providing training and mentoring to give workers of all backgrounds the
opportunity, skill, experience, and information necessary to perform well, and to
ascend to upper-level jobs.160

!

Make sure promotion criteria are made known, and that job openings are
communicated to all eligible employees.

Harassment
To protect employees from unlawful racial (and other) harassment, employers should
adopt a strong anti-harassment policy, periodically train each employee on its contents and
procedures, and vigorously follow and enforce it. The policy should contain:
!

A clear explanation of prohibited conduct, including examples;

!

Clear assurance that employees who make complaints or provide information related
to complaints will be protected against retaliation;

!

A clearly described complaint process that provides multiple, accessible avenues
of complaint;

!

Assurance that the employer will protect the confidentiality of harassment
complaints to the extent possible;

!

A complaint process that provides a prompt, thorough, and impartial
investigation; and

!

Assurance that the employer will take immediate and appropriate corrective
action when it determines that harassment has occurred.

160

Harvard Business School Professor David A. Thomas found in a three-year study of several
large corporations that high quality mentoring was one of the most salient features of the careers of highpotential Blacks who successfully made it to the upper executive level. Professor Thomas also found that the
career trajectories of Black executives differed markedly from the career trajectories of White executives.
High-potential Wh ites who ultimately reached the executive level entered a fast track much earlier in their
careers than high-potential Blacks. Blacks who reached the executive level were much more likely to have
distinguished themselves through special projects, task force assignments, turnaround assignments, a change
in location , or having a highly visible big success. See David A . Thomas, The Truth About Mentoring
Minorities: Race M atters, H ARVARD B USINESS R EVIEW (April 2001).

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For a full explanation of these points, see Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (June 1999), available at
http://www.eeoc.gov/policy/docs/harassment.html.
Terms, Conditions, and Privileges of Employment
!

Monitor compensation practices and performance appraisal systems for patterns of
potential discrimination. Make sure performance appraisals are based on
employees’ actual job performance. Ensure consistency, i.e., that comparable job
performances receive comparable ratings regardless of the evaluator, and that
appraisals are neither artificially low nor artificially high. Allow employees, without
negative consequences, to have their appraisals reviewed and corrected when
appropriate.

!

Develop the potential of employees, supervisors, and executives with EEO in mind,
by providing training and mentoring that provides workers of all backgrounds the
opportunity, skill, experience, and information necessary to perform well, and to
ascend to upper-level jobs.

!

Promote an inclusive culture in the workplace by inculcating an environment of
professionalism and respect for personal differences. In addition, employees of all
backgrounds should have equal access to workplace networks.161

!

Foster open communication and early dispute resolution. This will minimize the
chance of misunderstandings escalating into legally actionable EEO problems. In
addition, an alternative dispute-resolution (ADR) program can resolve EEO
problems without the acrimony associated with an adversarial process. Importantly,
however, even if there is such a program, an employee still is free to file a charge of
discrimination with EEOC, and utilizing a company grievance procedure or other
ADR mechanism does not suspend the running of the time period for filing an EEOC
charge. As a best practice, however, employers should consider expressly waiving
in advance any defense related to an employee’s failure to adhere to the charge-filing
time period if the employee properly utilizes the employer’s ADR program.

!

Protect against retaliation. Provide clear and credible assurances that if employees
make complaints or provide information related to complaints the employer will
protect employees from retaliation, and consistently follow through on this
guarantee.

161

The Comm ission’s Best Practices Task Fo rce Report uses the phrase “like me bias” to
describe one of the key general barriers to equal employm ent opportunity: “It is an axiom of hum an nature
that people often like to associate with other people who are like themselves. This enhances a comfort level
in working relationships. Such ‘like me’ bias may be conscious or un conscious. Nevertheless, the ‘like me’
syndrome can lead to a tendency to employ and work with people like oneself . . . .” See E QUAL
E MPLOYMENT O PPORTUNITY C OMMISSION, “B EST” E QUAL E MPLOYMENT O PPORTUNITY P OLICIES, P ROGRAMS,
AND P RACTICES IN THE P RIVATE S ECTOR 27 (2d ed. 1998).
The com plete report is available at
http://www.eeoc.gov/abouteeoc/task_reports/practice.html.

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Policy Statement on the Issue of Conviction Records under Title VII of the Civil Rights A... Page 1 of 3

The U.S. Equal Employment Opportunity Commission
EEOC Policy Statement on the Issue of Conviction Records under Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1982). (2/4/87)

CONVICTION RECORDS
At the Commission meeting of November 26, 1985, the Commission approved a modification of its
existing policy with respect to the manner in which a business necessity is established for denying an
individual employment because of a conviction record. The modification, which is set forth below,
does not alter the Commission's underlying position that an employer's policy or practice of
excluding individuals from employment on the basis of their conviction records has an adverse
(1)
(2)
impact on Blacks and Hispanics in light of statistics showing that they are convicted at a rate
disproportionately greater than their representation in the population. Consequently, the Commission
has held and continues to hold that such a policy or practice is unlawful under Title VII in the
absence of a justifying business necessity.(3)
However, the Commission has revised the previous requirements for establishing business necessity
(4)
in the following manner. Where a charge involves an allegation that the Respondent employer
failed(5) to hire or terminated the employment of the Charging Party as a result of a conviction policy
or practice that has an adverse impact on the protected class to which the Charging Party belongs,
the Respondent must show that it considered these three factors to determine whether its decision
was justified by business necessity:
1. The nature and gravity of the offense or offenses;
2. The time that has passed since the conviction and/or completion of the sentence; and
3. The nature of the job held or sought.

(6)

This procedure condenses the Commission's previous standard for business necessity, substituting a
one-step analysis for the prior two-step procedure and retaining some but not all of the factors
(7)
previously considered. The modification principally eliminates the need to consider an individual's
employment history and efforts at rehabilitation. However, consideration is still given to the jobrelatedness of a conviction, covered by the first and third factors, and to the time frame involved,
covered by the second factor. Moreover, the first factor encompasses consideration of the
circumstances of the offense(s) for which an individual was convicted as well as the number of
offenses.
The Commission continues to hold that, where there is evidence of adverse impact, an absolute bar
to employment based on the mere fact that an individual has a conviction record is unlawful under
Title VII.(8) The Commission's position on this issue is supported by the weight of judicial authority.(9)
It should be noted that the modified procedure does not affect charges alleging disparate treatment
on a prohibited basis in an employer's use of a conviction record as a disqualification for
employment. A charge brought under the disparate treatment theory of discrimination is one where,
for example, an employer allegedly rejects Black applicants who have conviction records but does
not reject similarly situated White applicants.
With respect to conviction charges that are affected by this modification--that is, those raising the
issue of adverse impact--Commission decisions that apply the previous standard are no longer
available as Commission decision precedent for establishing business necessity. To the extent that
such prior decisions are inconsistent with the position set forth herein, they are expressly overruled.

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Questions concerning the application of the Commission's revised business necessity standard to the
facts of a particular charge should be directed to the Regional Attorney for the Commission office in
which the charge was filed.
1. See, e.g., Commission Decision No. 72-1497, CCH EEOC Decisions (1973) ¶ 6352, and
Commission Decision Nos. 74-89, 78-10, 78-35, and 80-10, CCH EEOC Decisions (1983) ¶¶ 6418,
6715, 6720, and 6822, respectively.
2. See Commission Decision No. 78-03, CCH EEOC Decisions (1983) ¶ 6714.
3. See, e.g., Commission decisions cited supra nn.1-2.
4. Prior to this modification, for an employer to establish a business necessity justifying excluding an
individual from employment because of a conviction record, the evidence had to show that the
offense for which the applicant or employee was convicted was job-related. If the offense was not
job-related, a disqualification based on the conviction alone violated Title VII. However, even if the
offense was determined to be job-related, the employer had to examine other relevant factors to
determine whether the conviction affected the individual's ability to perform the job in a manner
consistent with the safe and efficient operation of the employer's business. The factors identified by
the Commission to be considered by an employer included:
1. The number of offenses and the circumstances of each offense for which the individual was
convicted;
2. The length of time intervening between the conviction for the offense and the employment
decision;
3. The individual's employment history; and
4. The individual's efforts at rehabilitation.
See, e.g., Commission Decision No. 78-35, CCH EEOC Decisions (1983) ¶ 6720.
Thus, under the previous procedure, business necessity was established by means of a two-step
process: first, by showing that the conviction was job-related; then, by separately demonstrating
that the conviction would affect the individual's ability to safely and efficiently perform the job upon
consideration of the four factors enumerated above.
5. Although the term "employer" is used herein, the Commission's position on this issue applies to all
entities covered by Title VII. See, e.g., Commission Decision No. 77-23, CCH EEOC Decisions (1983)
¶ 6710 (union's policy of denying membership to persons with conviction records unlawfully
discriminated against Blacks).
6.The Commission's revised business necessity analysis follows a decision by the United States Court
of Appeals for the Eighth Circuit in the Green v. Missouri Pacific Railroad Company case. Green, 523
F.2d 1290 (8th Cir. 1975), is the leading Title VII case on the issue of conviction records. In that
case, the court held that the defendant's absolute policy of refusing employment to any person
convicted of a crime other than a minor traffic offense had an adverse impact on Black applicants
and was not justified by business necessity. On a second appeal in that case, following remand, the
court upheld the district court's injunctive order prohibiting the defendant from using an applicant's
conviction record as an absolute bar to employment but allowing it to consider a prior criminal record
as a factor in making individual hiring decisions as long as the defendant took into account "the
nature and gravity of the offense or offenses, the time that has passed since the conviction and/or
completion of sentence, and the nature of the job for which the applicant has applied." Green v.
Missouri Pacific Railroad Company, 549 F.2d 1158, 1160 (8th Cir. 1977).
7.See discussion supra n.4.
8.See, e.g., Commission Decision No. 78-35, CCH EEOC Decisions (1983) ¶ 6720.
9. See Green, 523 F.2d at 1298; Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971), cert. denied, 406
U.S. 950 (1972) (brought under 42 U.S.C. §§ 1981 and 1983); and Richardson v. Hotel Corporation
of America, 332 F. Supp. 519 (E.D. La. 1971), aff'd mem., 468 F.2d 951 (5th Cir. 1972). See also
Hill v. United States Postal Service, 522 F. Supp. 1283 (S.D. N.Y. 1981); Craig v. Department of

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Health, Education, and Welfare, 508 F. Supp. 1055 (W.D. Mo. 1981); and Cross v. United States
Postal Service, 483 F. Supp. 1050 (E.D. Mo. 1979).
This page was last modified on September 11, 2006.

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Policy Statement: Conviction Records - Statistics

Page 1 of 2

The U.S. Equal Employment Opportunity Commission
EEOC Policy Statement on the Use of Statistics in Charges Involving the Exclusion of
Individuals with Conviction Records from Employment (7/29/87)

CONVICTION RECORDS - STATISTICS
Green v. Missouri Pacific Railroad Company, 523 F.2d 129010 EPD ¶ 10,314 (8th Cir. 1975), is the
leading Title VII case on the issue of conviction records. In Green, the court held that the
defendant's policy of refusing employment to any person convicted of a crime other than a minor
traffic offense had an adverse impact on Black applicants and was not justified by business necessity.
In a second appeal following remand, the court upheld the district court's injunctive order prohibiting
the defendant from using an applicant's conviction record as an absolute bar to employment but
allowing it to consider a prior criminal record as long as it constituted a business necessity. Green v.
Missouri Pacific Railroad Company, 549 F.2d 1158, 1160,13 EPD ¶ 11,579 (8th Cir. 1977). See also
Commission Decision No. 72- 1497, CCH EEOC Decisions (1973) ¶ 6352, and Commission Decision
Nos. 74-89, 78-10, 78-35, and 80-10, CCH EEOC Decisions (1983) ¶¶ 6418, 6715, 6720, and 6822,
respectively.
It is the Commission's position that an employer's policy or practice of excluding individuals from
employment on the basis of their conviction records has an adverse impact on Blacks(1) and
Hispanics(2) in light of statistics showing that they are convicted at a rate disproportionately greater
than their representation in the population. Policy Statement on the Issue of Conviction Records
Under Title VII (February 4, 1987). However, when the employer can present more narrowly drawn
statistics showing either that Blacks and Hispanics are not convicted at a disproportionately greater
rate or that there is no adverse impact in its own hiring process resulting from the convictions policy,
then a no cause determination would be appropriate.
1. Where the Employer's Policy is Not Crime-Specific
An employer's policy of excluding from employment all persons convicted of any crime is likely to
create an adverse impact for Blacks and Hispanics based on national and regional conviction rate
statistics. However, it is open to the respondent/employer to present more narrow local, regional, or
applicant flow data, showing that the policy probably will not have an adverse impact on its applicant
pool and/or in fact does not have an adverse impact on the pool. As the Supreme Court has stated,
Although 'a statistical showing of disproportionate impact need not always be based on
an analysis of the characteristics of actual applicants,' Dothard v. Rawlinson, 433 U.S.
321, 330, 'evidence showing that the figures for the general population might not
accurately reflect the pool of qualified job applicants' undermines the significance of such
figures. Teamsters v. United States, 431 U.S. 324, 340 n. 20.
New York City Transit Authority v. Beazer, 440 U.S. 568, 586 n. 29,19 EPD ¶ 9027 at p. 6315
(1979). See also Costa v. Markey, 30 EPD ¶ 33,173 at p. 27,638 (1st Cir. 1982), vacated on other
grounds, 706 F.2d 796, 32 EPD ¶ 32,622 (1st Cir.), cert. denied, 104 S. Ct. 547, 32 EPD ¶ 33,955
(1983).
If the employer provides applicant flow data, information should be sought to assure that the
employer's applicant pool was not artificially limited by discouragement. For example, if many Blacks
with conviction records did not apply for a particular job because they knew of the employer's policy
and they therefore expected to be rejected, then applicant flow data would not be an accurate
reflection of the conviction policy's actual effect. See Dothard v. Rawlinson, 433 U.S. 321, 330
(1977). (Section 608, Recruitment, of Volume II of the Compliance Manual will provide a more
detailed discussion of when and how to investigate for discouragement.)
2. Where the Employer's Policy is Crime-Specific

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Policy Statement: Conviction Records - Statistics

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In the past, when the Commission has evaluated an employer's "no convictions" policy dealing with a
subcategory of crimes; e.g., theft, robbery, or drug-related crimes; the Commission has relied upon
national or regional conviction statistics for crimes as a whole. See, e.g., Commission Decision No.
73- 0257, CCH EEOC Decisions (1973) ¶ 6372, and Commission Decision Nos. 76-110 and 80-17,
CCH EEOC Decisions (1983) ¶¶ 6676 and 6809, respectively. However, these statistics only show a
probability of adverse impact for Blacks and Hispanics, while more narrow data may show no
adverse impact.
If the employer can present more narrow regional or local data on conviction rates for all crimes
showing that Blacks and Hispanics are not convicted at disproportionately higher rates, then a no
cause determination would be proper.(3) Alternatively, the employer may present national, regional,
or local data on conviction rates for the particular crime which is targeted in its crime-specific
convictions policy. If such data shows no adverse impact, then a no cause determination would be
appropriate. Finally, the employer can use applicant flow data to demonstrate that its conviction
policy has not resulted in the exclusion from employment of a disproportionately high number of
Blacks and Hispanics.
1. See, e.g., Commission Decision No. 72-1497, CCH EEOC Decisions (1973) ¶ 6352, and
Commission Decision Nos. 74-89, 78-10, 78-35, and 80- 10, CCH EEOC Decisions (1983) ¶¶ 6418,
6715, 6720, and 6822, respectively.
2. See Commission Decision No. 78-03, CCH EEOC Decisions (1983) ¶ 6714.
3. However, if even more narrow statistics, such as regional or local crime-specific data, show
adverse impact, then a cause finding would be appropriate absent a justifying business necessity.
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