Alaska Employment Law

Introduction

In Farrakhan v. Gregoire, ___ F.3d ___, Slip Op. 107 (9th Cir. Jan. 5, 2010), a split panel of the Ninth Circuit held that denying felons the right to vote violated the Voting Rights Act because there was evidence that Washington state’s criminal justice system had a discriminatorily adverse impact on Blacks and other minorities.  Although the case is a VRA case, the underlying rationale nevertheless reflects longstanding EEOC guidance regarding employer use of arrest and conviction records in hiring decisions.

Discussion

Many commentators argue that a statistically disproportionate number of minorities are arrested and/or convicted.  The EEOC has studied this issue since the 1980s, and concluded that employer reliance upon arrest or conviction records may have a disparate impact on minorities.  In Gregory v. Litton Systems, 316 F. Supp. 401 (C. D. Cal. 1970), modified on other grounds, 472 F.2d 631 (9th Cir. 1972), the court held that unrestricted use of arrest records to reject job applicants could violate Title VII based on statistical evidence that Blacks were arrested more often than Whites.

Under existing EEOC guidance, arrest records may be used by employers in evaluating job applicants.  However, “not only must the employer consider the relationship of the charges to the position sought, but also the likelihood that the applicant actually committed the conduct alleged in the charges.” See EEOC Policy Guidance on the Consideration of Arrest Records in Employment decisions under Title VII, No. 915061 (September 7, 1990). If the employer reasonably concludes “that the applicant or employee engaged in the conduct for which he was arrested and that the conduct is job-related and relatively recent,” the employer would be justified in relying upon an arrest record to deny employment or for other employment decisions. 

Conviction records are less problematic because a conviction is reliable evidence that the person actually committed the offense.  However, the EEOC’s position is that employers should not use criminal convictions to screen out job applicants or for other job-related decisions unless there is a business reason for doing so (the business necessity defense).   The employer should consider (1) the nature and gravity of the crime, (2) the time that has passed since conviction or completion of sentence, and (3) the nature of the job held or sought. This guidance is based on Green v. Missouri Pacific Railroad Company, 549 F.2d 1158, 1160 (8th Cir. 1977), in which the court held that employers should not use criminal conviction as an absolute bar to employment, but could rely upon convictions by relying upon the three specified factors.

Under the Fair Credit Reporting Act, background checks are consumer credit reports and employers should afford job applicants an opportunity to address and rebut any information before making an adverse employment decision.

Sources

09/07/90 EEOC Policy Guidance on Arrest Records

07/29/87 EEOC Policy Statement on Use of Statistics re Conviction Records

02/04/87 EEOC Policy Statement on Conviction Records

Significance

It is highly probable that Farrakhan will be reviewed, either by the Ninth Circuit en banc or by the U.S. Supreme Court. The majority’s underlying analysis closely tracks EEOC guidance.  Consequently, depending upon how subsequent review resolves the issues, we may well see the core reasoning challenged or rejected, leading perhaps to a change in EEOC guidance. Meanwhile, in a related development, the EEOC has filed suit in the District of Maryland against Freeman Companies, seeking to prohibit the employer from using and relying upon credit histories and criminal background checks when evaluating job applications. EEOC v. Freeman Cos., No. 09-CV-02573 (D. Maryland).  The case will not be resolved soon, but will ultimately affect how arrest or conviction records (as well as credit histories) are used.