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In light of employers' increased access to criminal history information, case law analyzing Title VII requirements for criminal record exclusions, and other developments, 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.

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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.

African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. S.) is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged.

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 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.

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.

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.

Example 2: Disparate Treatment Based on National Origin.

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.

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. practices that are fair in form, but discriminatory in operation. If an employment practice which operates to exclude [African Americans] cannot be shown to be related to job performance, the practice is prohibited." An unlawful employment practice based on disparate impact is established . 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.

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