The testimony summarizes the EEOC's proposed Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions. It notes that the use of criminal background checks has increased significantly over the past 20 years. The arrest and incarceration rates of African Americans and Hispanics are disproportionately high. The Guidance consolidates and updates the EEOC's past policy statements on this issue and provides more in-depth legal analysis of disparate treatment and disparate impact claims under Title VII. It distinguishes between the treatment of arrest records versus conviction records in employment decisions and the types of evidence that can be used to establish discrimination under disparate treatment and disparate impact theories of liability.
This presentation discusses best practices for employers to comply with state and federal directives, develop appropriate and inclusive policies, and encourage diversity in the workplace.
Can you be punished for refusing to take a breath alcohol testerSherry Huang
This morning, the Supreme Court will hear oral arguments in Birchfield v. North Dakota, a case consolidated with two others to address the following issue: in the absence of a warrant, can a state make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood?
This presentation discusses best practices for employers to comply with state and federal directives, develop appropriate and inclusive policies, and encourage diversity in the workplace.
Can you be punished for refusing to take a breath alcohol testerSherry Huang
This morning, the Supreme Court will hear oral arguments in Birchfield v. North Dakota, a case consolidated with two others to address the following issue: in the absence of a warrant, can a state make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood?
This presentation by Jonathan JACOBSON, Partner Wilson Sonsini Goodrich & Rosati, was made during the discussion “The standard of review by courts in competition cases” held at the 129th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 4 June 2019. More papers and presentations on the topic can be found out at oe.cd/srccc
Getting the Deal Through: Enforcement of Foreign Judgments 2019Matheson Law Firm
Partner Julie Murphy O'Connor and senior associate Gearóid Carey co-author the Ireland chapter for Getting the Deal Through: Enforcement of Foreign Judgments 2019.
Presentation made to Chief Inspector of UKBA on litigation, the law and UKBA. The presentation is somewhat critical of UKBA handling of litigation. It draws on various submissions made by the Immigration Law Practitioners Association (ILPA).
The fourth quarter of 2017 was marked by Department of Justice (DOJ) policy change announcements, robust international cooperation, and a challenge to the conventional wisdom that Foreign Corrupt Practices Act (FCPA) enforcement will be diminished under the current administration.
BCJ 2002, Theory and Practices of Corrections 1 Cour.docxJASS44
BCJ 2002, Theory and Practices of Corrections 1
Course Learning Outcomes for Unit I
Upon completion of this unit, students should be able to:
1. Define terms related to corrections.
1.1 Define all relevant vocabulary related to the correctional system within
the unit.
1.2 Define and understand professionalism in corrections.
2. Assess the purpose, implementation, and effectiveness of corrections.
2.1 Identify standards, training, and skills of correctional officers.
2.2 Identify what organizations exist that set standards in the field.
3. Trace the historical evolution of the correctional system.
3.1 Identify key people that have helped to reform the correctional system
over time.
Unit Lesson
The statistics currently indicate that crime has declined since the 1990s; however, the
number of people incarcerated or under some sort of correctional supervision has
continued to steadily increase. There are four reasons behind this phenomenon:
1. The tough on crime laws like three-strikes-laws have kept repeat offenders
incarcerated for extended lengths of time.
2. The War on Drugs has led to many arrests and convictions that have
increased incarcerated populations in every jurisdiction in the country.
3. Parole authorities now fear liability for inmates released early that re-offend.
4. Those that are out of jail and prison and on probation are more likely to violate
probation.
As the incarceration rate rises, it is important to realize that employment rates of
correctional officers and support staff will also continue to rise. In 1950 there were
approximately 27,000 people employed as correctional officers. Current statistics
indicate that number is now at 490,000 correctional officers. If you were to factor in the
increase in juvenile detention centers, probation and parole officers, administrators,
and other professionals in the correctional field, the number jumps to 748,000 people
employed in the correctional field (Schmalleger & Smykla, 2015).
Corrections Place in the Criminal Justice System
Once a person is arrested, he or she is booked into jail. Law enforcement must then
present evidence to the prosecutor and the decision will be made to file formal
charges or release the person from custody. If a person is charged with a crime, he or
she must go before a judge in an initial, or first, appearance in court. At this time he or
Reading
Assignment
Chapter 1:
Corrections: An Overview
Chapter 2:
Punishments: A Brief
History
Learning Activities
(Non-Graded)
See information below.
Key Terms
1. Adjudication
2. Arraignment
3. Community
corrections
4. Corporal punishment
5. Cost-benefit analysis
6. Criminal law
7. Evidence-based
corrections
8. Hedonistic calculus
9. Institutional
corrections
10. Mores
11. Nolo contendere
12. Noninstitutional
corrections
13. Penal law
14. Sustainable justice
15. Utilitarianism
...
Keynote address by Rebecca Love Kourlis, Executive Director of the Institute for the Advancement of the American Legal System at the University of Denver. Given at Pepperdine School of Law, April 2010. Giving a national focus on the civil justice system and how it needs assessment and repair.
The History of the Pre-sentence Investigation Report Consi.docxoreo10
The History of the Pre-sentence Investigation Report
Considered among the most important documents in the criminal justice field, the
presentence investigation report (PSI) has been the central source of information to
sentencing judges since the 1920s. Its original purpose was to provide information to the
court on the defendant’s personal history and criminal conduct in order to promote
individualized sentencing. With the advent of more punitive sentencing policies in recent
years, the PSI has become more offense focused and less individualized. Despite current
trends, the PSI will likely remain a critical component of the American criminal justice
system
Origins of the PSI
The origins of the modern presentence investigation began in the 1840s with the
crusading efforts of Boston shoemaker John Augustus (1841-1859). It was Augustus’
belief that the "object of the law is to reform criminals and to prevent crime, and not to
punish maliciously or from a spirit of revenge." In his efforts to redeem selected
offenders, Augustus gathered background information about the offender’s life and
criminal history. If he determined that the person was worthy, Augustus provided bail
money out of his own pocket. If he succeeded in winning the person’s release, he helped
them find employment and housing. Later he appeared at the sentencing hearing and
provided the judge with a detailed report of the person’s performance. Augustus would
then recommend that the judge suspend the sentence and release the person to his
custody.
Considered the father of modern probation, Augustus’s leadership led the Massachusetts
legislature to establish the nation’s first probation law in 1878. By authorizing the Mayor
of Boston to appoint a member of the police department to serve as a paid probation
officer, this statute formalized the practice of extending probation to "such persons as
may be reasonably be expected to be reformed without punishment." The law was
expanded in 1891 with the creation of an independent state-wide probation system. By
the time that the National Probation Act was passed in 1925 creating a Federal probation
service, the majority of states had probation statutes.
The evolution of the presentence investigation was given further impetus by the
reformatory movement of the 1870s. Because reformatory movement proponents
advocated an individualized approach towards the redemption of the criminal,
indeterminate sentencing became a popular sentencing reform throughout the later half of
CEN TER ON JUVEN ILE AN D CRIMIN AL JUSTICE
w w w .cjcj.org
the 19th century and became the standard form of sentencing throughout the United
States until the 1980s.
Simultaneous to the development of probation and the indeterminate sentence, the
evolution of the social sciences gave rise to the medical model of corrections during the
1920s and 1930s. The medical model was founded on the belief that crime was the result ...
This presentation by Jonathan JACOBSON, Partner Wilson Sonsini Goodrich & Rosati, was made during the discussion “The standard of review by courts in competition cases” held at the 129th meeting of the OECD Working Party No. 3 on Co-operation and Enforcement on 4 June 2019. More papers and presentations on the topic can be found out at oe.cd/srccc
Getting the Deal Through: Enforcement of Foreign Judgments 2019Matheson Law Firm
Partner Julie Murphy O'Connor and senior associate Gearóid Carey co-author the Ireland chapter for Getting the Deal Through: Enforcement of Foreign Judgments 2019.
Presentation made to Chief Inspector of UKBA on litigation, the law and UKBA. The presentation is somewhat critical of UKBA handling of litigation. It draws on various submissions made by the Immigration Law Practitioners Association (ILPA).
The fourth quarter of 2017 was marked by Department of Justice (DOJ) policy change announcements, robust international cooperation, and a challenge to the conventional wisdom that Foreign Corrupt Practices Act (FCPA) enforcement will be diminished under the current administration.
BCJ 2002, Theory and Practices of Corrections 1 Cour.docxJASS44
BCJ 2002, Theory and Practices of Corrections 1
Course Learning Outcomes for Unit I
Upon completion of this unit, students should be able to:
1. Define terms related to corrections.
1.1 Define all relevant vocabulary related to the correctional system within
the unit.
1.2 Define and understand professionalism in corrections.
2. Assess the purpose, implementation, and effectiveness of corrections.
2.1 Identify standards, training, and skills of correctional officers.
2.2 Identify what organizations exist that set standards in the field.
3. Trace the historical evolution of the correctional system.
3.1 Identify key people that have helped to reform the correctional system
over time.
Unit Lesson
The statistics currently indicate that crime has declined since the 1990s; however, the
number of people incarcerated or under some sort of correctional supervision has
continued to steadily increase. There are four reasons behind this phenomenon:
1. The tough on crime laws like three-strikes-laws have kept repeat offenders
incarcerated for extended lengths of time.
2. The War on Drugs has led to many arrests and convictions that have
increased incarcerated populations in every jurisdiction in the country.
3. Parole authorities now fear liability for inmates released early that re-offend.
4. Those that are out of jail and prison and on probation are more likely to violate
probation.
As the incarceration rate rises, it is important to realize that employment rates of
correctional officers and support staff will also continue to rise. In 1950 there were
approximately 27,000 people employed as correctional officers. Current statistics
indicate that number is now at 490,000 correctional officers. If you were to factor in the
increase in juvenile detention centers, probation and parole officers, administrators,
and other professionals in the correctional field, the number jumps to 748,000 people
employed in the correctional field (Schmalleger & Smykla, 2015).
Corrections Place in the Criminal Justice System
Once a person is arrested, he or she is booked into jail. Law enforcement must then
present evidence to the prosecutor and the decision will be made to file formal
charges or release the person from custody. If a person is charged with a crime, he or
she must go before a judge in an initial, or first, appearance in court. At this time he or
Reading
Assignment
Chapter 1:
Corrections: An Overview
Chapter 2:
Punishments: A Brief
History
Learning Activities
(Non-Graded)
See information below.
Key Terms
1. Adjudication
2. Arraignment
3. Community
corrections
4. Corporal punishment
5. Cost-benefit analysis
6. Criminal law
7. Evidence-based
corrections
8. Hedonistic calculus
9. Institutional
corrections
10. Mores
11. Nolo contendere
12. Noninstitutional
corrections
13. Penal law
14. Sustainable justice
15. Utilitarianism
...
Keynote address by Rebecca Love Kourlis, Executive Director of the Institute for the Advancement of the American Legal System at the University of Denver. Given at Pepperdine School of Law, April 2010. Giving a national focus on the civil justice system and how it needs assessment and repair.
The History of the Pre-sentence Investigation Report Consi.docxoreo10
The History of the Pre-sentence Investigation Report
Considered among the most important documents in the criminal justice field, the
presentence investigation report (PSI) has been the central source of information to
sentencing judges since the 1920s. Its original purpose was to provide information to the
court on the defendant’s personal history and criminal conduct in order to promote
individualized sentencing. With the advent of more punitive sentencing policies in recent
years, the PSI has become more offense focused and less individualized. Despite current
trends, the PSI will likely remain a critical component of the American criminal justice
system
Origins of the PSI
The origins of the modern presentence investigation began in the 1840s with the
crusading efforts of Boston shoemaker John Augustus (1841-1859). It was Augustus’
belief that the "object of the law is to reform criminals and to prevent crime, and not to
punish maliciously or from a spirit of revenge." In his efforts to redeem selected
offenders, Augustus gathered background information about the offender’s life and
criminal history. If he determined that the person was worthy, Augustus provided bail
money out of his own pocket. If he succeeded in winning the person’s release, he helped
them find employment and housing. Later he appeared at the sentencing hearing and
provided the judge with a detailed report of the person’s performance. Augustus would
then recommend that the judge suspend the sentence and release the person to his
custody.
Considered the father of modern probation, Augustus’s leadership led the Massachusetts
legislature to establish the nation’s first probation law in 1878. By authorizing the Mayor
of Boston to appoint a member of the police department to serve as a paid probation
officer, this statute formalized the practice of extending probation to "such persons as
may be reasonably be expected to be reformed without punishment." The law was
expanded in 1891 with the creation of an independent state-wide probation system. By
the time that the National Probation Act was passed in 1925 creating a Federal probation
service, the majority of states had probation statutes.
The evolution of the presentence investigation was given further impetus by the
reformatory movement of the 1870s. Because reformatory movement proponents
advocated an individualized approach towards the redemption of the criminal,
indeterminate sentencing became a popular sentencing reform throughout the later half of
CEN TER ON JUVEN ILE AN D CRIMIN AL JUSTICE
w w w .cjcj.org
the 19th century and became the standard form of sentencing throughout the United
States until the 1980s.
Simultaneous to the development of probation and the indeterminate sentence, the
evolution of the social sciences gave rise to the medical model of corrections during the
1920s and 1930s. The medical model was founded on the belief that crime was the result ...
MHR 6401, Employment Law 1 Course Learning Outcomes f.docxgertrudebellgrove
MHR 6401, Employment Law 1
Course Learning Outcomes for Unit II
Upon completion of this unit, students should be able to:
2. Summarize Title VII of the Civil Rights Act of 1964.
2.1 Determine the protected classes under Title VII.
2.2 Determine the range of actions to which Title VII applies, including the key areas of hiring,
promotion, and protected activity.
4. Characterize conduct that violates the federal anti-discrimination laws in employment.
4.1 Describe how violations of Title VII by employers occur.
4.2 Explain the role of the Equal Employment Opportunity Commission (EEOC) in workplace
discrimination issues.
6. Discuss the history of racial discrimination in employment in the United States.
6.1 Explain the importance of the passage of Civil Rights Act and its impact in eliminating racial
discrimination in the workplace.
Course/Unit
Learning Outcomes
Learning Activity
2.1
Unit Lesson
Chapter 3
Chapter 7
Unit II PowerPoint Presentation
2.2
Unit Lesson
Chapter 3
Chapter 7
Unit II PowerPoint Presentation
4.1
Unit Lesson
Chapter 3
Chapter 7
Unit II PowerPoint Presentation
4.2
Unit Lesson
Chapter 3
Chapter 7
Unit II PowerPoint Presentation
6.1
Unit Lesson
Chapter 3
Chapter 7
Unit II PowerPoint Presentation
Reading Assignment
Chapter 3: Overview of Employment Discrimination, pp. 67–105
Chapter 7: Hiring and Promotion Decisions, pp. 223–257
UNIT II STUDY GUIDE
Discrimination in the Workplace
MHR 6401, Employment Law 2
UNIT x STUDY GUIDE
Title
Unit Lesson
The 1960s was a decade of great change in the
United States, socially and politically. This unit
introduces the law that has had the greatest impact on
the employment relationship in the United States –
Title VII of the Civil Rights Act of 1964. The
photograph reflects the signing of the Civil Rights Act
into law by President Lyndon Johnson, with Martin
Luther King, Jr. and Congressional supporters of the
law looking on. Foretelling the passage of Title VII,
President Franklin Roosevelt issued an executive
order in 1941 prohibiting racial discrimination by
federal defense contractors (National History Day,
National Archives and Records Administration, & USA
Freedom Corps, n.d.). Employers were slow to adopt
change, and job advertisements before Title VII
specified race and gender (Lytle, 2014). Women and
racial minorities were deprived of equal opportunity in
employment and employers missed broader pools of workers. Large pools of potential wage earners and
consumers were essentially left out of the U.S. economy.
Changes wrought by Title VII did not occur overnight; it has taken years for the law to develop, and it
continues to develop and evolve today. This evolution occurs as demographic changes lead to ever-
increasing diversity in the workforce. Women, ethnic minorities, and persons with disabilities continue to grow
in the ranks of workers. This is not by ...
The second quarter of 2017 was relatively quiet from an enforcement perspective. Two Magyar Telekom executives settled cases that the Securities and Exchange Commission had filed against them, and two entities received declination letters from the Department of Justice.
During the recently completed third quarter of 2017, the Department of Justice resolved one matter and the Securities and Exchange Commission resolved two matters. While this was a slow quarter in terms of the number of enforcement actions, the financial impact was significant as the Telia global settlement involved financial penalties and disgorgement of approximately $965 million to be allocated between U.S., Dutch, and Swedish authorities.
iv
chapter
9
the arreSt DecISIOn
Simulation Studies
Police Bias in the Arrest Decision
Racism
Early Studies
Later Studies
Sexism
Early Studies
Later Studies
Biased-Based Policing
A Critique
Controlling Police Officer Discretion
The Locus of Change
The Policy Formulation Process
Summary
Review Questions
Discussion Questions
Selected Internet Sites
References
275
chapter OutlIne
Key Terms
Learning Objectives
Introduction
Full versus Selective Enforcement
Reasons for Police Discretion
Unclear Laws
Nuisance Behavior
Broad Statutes
Moral Standards
Outdated Laws
Defining Discretion
Handling Calls for Service
Police Operators and Dispatchers
Handling Calls in the Field
Observational Studies
Controlling the Call
Putting It Together
The Arrest Decision
Field Encounter Studies
R
O
D
D
Y
,
A
N
T
H
O
N
Y
6
9
7
3
B
U
276 Part 3 On the Streets
pretextual stop
proactive policing
quota
racial profiling
reactive policing
selective enforcement
simulation
unarticulated improvisation
Key termS
chivalry hypothesis
coercive regulation
definitional regulation
discretion
field observation
full enforcement
imperative regulation
masculinity hypothesis
policy
• Comment on why some people call
police telephone operators and
dispatchers the “gatekeepers to the
police system;”
• Talk about how police officers use
definition, imperative, and coercive
regulation;
• Explain how legal and non-legal vari-
ables influence the decision to arrest
a person;
• Debate whether racism and sexism
bias the arrest decision
• Critique the arrest literature that
relies heavily on just social variables;
• Review the policy formulation pro-
cess; and,
• Discuss the importance of police for
police discretion.
learnIng ObjectIveS
The study of this chapter will enable
you to:
• Explain why arrest is such a monu-
mental power;
• Understand why full enforcement
is a myth;
• Outline what selective enforcement
means;
• Appreciate what unarticulated
improvisation is;
• List two objections to unarticulated
improvisation
• Define police discretion;
• Appreciate why the decision not to
arrest is important;
• Give five reasons why police
discretion exists
• Differentiate discretion from
discrimination;
• Contrast proactive with reactive
policing;
R
O
D
D
Y
,
A
N
T
H
O
N
Y
6
9
7
3
B
U
Chapter 9 the arrest Decision 277
Introduction
One of the more monumental powers a police officer can exercise is an arrest. Why
do we refer to arrest powers as being monumental? Very simply, being arrested car-
ries a negative image that taints the arrestee for years to come. One classic example of
this adverse impact comes from an ingenious field experiment. Schwartz and Skolnick
(1962) designed a resumé for four fictitious job seekers. While all the pertinent details
were the same for each candidate, the criminal records varied. The first application con-
tained no mention of an arrest history.
Gatto v. United Air Lines, Inc. - Spoliation Instruction in Facebook Account ...Umesh Heendeniya
Gatto vs. United Air Lines, Inc. - Spoliation Instruction in Facebook Account Deletion.
Frank Gatto, United Air Lines, Allied Aviation Services, Spoliation Instruction, Destroying Evidence.
Libor Lawsuit - In Re _ LIBOR Antitrust Litigation vs. Bank of America, JPMor...Umesh Heendeniya
LIBOR Lawsuit - In Re: LIBOR Antitrust Litigation vs. Bank of America, JPMorgan Chase, Royal Bank of Scotland, UBS AG, Barclays, Citigroup, Credit Suisse, Deutsche Bank, HSBC Holdings, WestLB AG, Royal Bank of Canada.
Estate of Carlos Centeno, deceased v. Raani Corporation, Rashid A. Chaudary, ...Umesh Heendeniya
Estate of Carlos Centeno, deceased vs. Raani Corporation, Rashid A. Chaudary, Balwinder Singh, Muhammad Javaid, Pervaiz Jafri, and Ron’s Staffing Services Inc. - Lawsuit.
Scott Dominguez, Allan Elias, OSHA
Boston Police Officers' Cocaine Drug Testing Appeals Overturned by State Boar...Umesh Heendeniya
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Stephen Slevin (59) left in solitary confinement (by jail director Chris Barela and former medical director Dr. Daniel Zemek) in the Dona Ana County, New Mexico jail for 2 years gets $15.5 million lawsuit settlement.
The tax payers are on the hook for $9.5 million while the county's liability insurance carriers will pay $6 million.
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Welcome to the Program Your Destiny course. In this course, we will be learning the technology of personal transformation, neuroassociative conditioning (NAC) as pioneered by Tony Robbins. NAC is used to deprogram negative neuroassociations that are causing approach avoidance and instead reprogram yourself with positive neuroassociations that lead to being approach automatic. In doing so, you change your destiny, moving towards unlocking the hypersocial self within, the true self free from fear and operating from a place of personal power and love.
Program Your Destiny eBook - Destiny University.pdf
Criminal Background Check EEOC Office of Legal Counsel Testimony
1. Written Testimony of Office of Legal Counsel http://www1.eeoc.gov//eeoc/meetings/4-25-12/olc_testimony.cfm?render...
U.S. Equal Employment Opportunity Commission
OFFICE OF LEGAL COUNSEL TESTIMONY ON ARRESTS AND
CONVICTIONS
Good morning Madam Chair and Commissioners. I am Tanisha Wilburn, Acting Assistant Legal Counsel in the Office of
Legal Counsel. Assistant Legal Counsel Carol Miaskoff and I will summarize the proposed 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.
The Enforcement Guidance before you consolidates and supersedes the Commission’s policy statements from 1987
and 1990 on this issue, as well as the short discussion in Section VI.B.2 of the Commission’s 2006 Race & Color
Discrimination Compliance Manual Section. As such, this proposed Guidance would represent the Commission’s first
major statement on this important topic in over 20 years. At the same time, the Guidance largely reasserts fundamental
legal positions the Commission staked out over 20 years ago, providing more in depth legal analysis and updated
factual research.
BACKGROUND
The proposed Enforcement Guidance begins by setting forth the reasons why this update is timely.
In the last 20 years, technology has changed not only the way people apply for jobs, but also the way employers
screen people for jobs. The review of criminal records is often part of that screening process. There are now many
online sources for obtaining criminal history information about applicants and employees. Commercial services have
developed private databases of criminal records from which they provide criminal history information to employers for a
fee, subject to the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq.
In a 2010 survey conducted by the Society for Human Resources Management, a total of 92% of the responding
employers reported that they subjected some or all of their job applicants to criminal background checks. Generally,
employers have cited legal requirements as well as concern about negligent hiring liability, theft and workplace violence
as reasons for using criminal background checks.
There also has been an increase in the proportion of Americans who have had contact with the criminal justice system in
the last 20 years.
In 1991, 1.8% of the adult American population had served time in prison.
By 2007, 3.2% of all adults in the American population were under some form of correctional control involving
probation, parole, prison, or jail.
If incarceration rates do not decrease, the Department of Justice has projected that approximately 6.6% of all people
born in the United States in 2001 will serve time in state or federal prison during their lifetimes.
Arrest and incarceration rates continue to be disproportionately high for African American and Hispanic men.
African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general
population.
Assuming that current incarceration rates remain unchanged:
approximately 1 in 17 White men is expected to serve time in prison during his lifetime;
approximately 1 in 6 Hispanic men is expected to do so, and
approximately 1 in 3 African American men is expected to be incarcerated in his lifetime.
Finally, there is a need for more legal guidance on this topic under Title VII.
All three EEOC policy documents on this topic predated the Civil Rights Act of 1991. That Act codified disparate
impact analysis, which is often used to challenge criminal record screens as discriminatory under Title VII.
The Commission’s February 1987 Conviction Records policy statement, and its 2006 Compliance Manual on Race
and Color Discrimination, were the only EEOC documents to include discussions of disparate treatment
discrimination and the use of criminal records. Thus, this topic merited more attention.
1
Finally, in its 2007 El v. Southeastern Pennsylvania Transportation Authority decision, the Third Circuit Court of
Appeals noted that the Commission’s 1987 and 1990 policy statements did not provide sufficient legal analysis and
factual research.
1 of 4 5/18/2012 7:49 PM
2. Written Testimony of Office of Legal Counsel http://www1.eeoc.gov//eeoc/meetings/4-25-12/olc_testimony.cfm?render...
This proposed Enforcement Guidance is intended to respond to these concerns.
PROCESS
To ensure that it considered the latest research and diverse perspectives on this issue, the Commission held public
meetings in 2008 and 2011 on the use of criminal records in employment decisions. Panelists at both meetings
submitted detailed written statements, which staff analyzed, and the Chair and Commissioners questioned the panelists
during the meetings.
The Commission also invited interested parties to provide feedback and written comments after the July 2011 meeting.
As a result, the Commission received and reviewed approximately 300 written comments. Prominent business and civil
rights groups were well represented, in addition to many individuals.
THE PROPOSED ENFORCEMENT GUIDANCE
We will now summarize the proposed Enforcement Guidance. This document reaffirms the Commission’s fundamental
Title VII policy positions on this topic and provides significantly more in-depth legal analysis and factual research.
First, like the earlier documents, the proposed Enforcement Guidance focuses on criminal record screening and
employment discrimination based on race and national origin.
Second, the proposed Enforcement Guidance discusses the differences between the treatment of arrest and
conviction records.
The fact of an arrest does not establish that criminal conduct has occurred. Therefore, 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.
By 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 main discussion in the proposed Enforcement Guidance concerns disparate treatment and disparate impact
analysis.
Under disparate treatment analysis, a violation may occur when an employer treats criminal history information
differently for different applicants or employees, based on their race or national origin. For example, there would be 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.
There are several kinds of evidence that may be used to establish that race, national origin, or another protected basis,
motivated how an employer used information about criminal records in its selection decisions. These include:
Biased statements;
Inconsistencies in the hiring process; and
Comparisons with similarly situated applicants and employees.
[I will now turn the presentation over to my colleague, Carol Miaskoff, Assistant Legal Counsel for Title VII/ADEA/EPA.]
I will summarize what the proposed Enforcement Guidance says about disparate impact analysis. 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. The discussion in the
proposed Enforcement Guidance is organized according to the elements of the disparate impact case.
The first step is to identify the particular policy or practice that causes the unlawful disparate impact. For
criminal record 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, information also includes
which offenses or classes of offenses were reported to the employer (for example, 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 (for example, the last five, ten, or twenty years); and the jobs for
which the criminal background screening was conducted.
The next step is determining disparate impact. Here, the Enforcement Guidance provides more detail than the 1987
and 1990 policy statements, but sets forth the same policy positions:
The proposed Enforcement Guidance recounts national criminal data for African Americans and Hispanics in detail.
The national data supports a finding that criminal record exclusions have a disparate impact based on race and
national origin. It also provides a basis for the Commission to further investigate Title VII disparate impact charges
challenging criminal record exclusions.
As before, the employer has an opportunity during the investigation to show, with relevant evidence, that its
employment policy or practice does not cause a disparate impact on the protected group(s).
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The Commission assesses all relevant evidence when making a determination of disparate impact.
After the plaintiff in litigation establishes disparate impact, Title VII shifts the burdens of 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.” The proposed Enforcement Guidance analyzes the legal genesis of this standard in Supreme
Court cases and federal appellate decisions involving criminal records exclusions.
The Eighth Circuit, in its 1977 Green v. Missouri Pacific Railroad decision, identified three factors for assessing
whether a criminal record exclusion is job related and consistent with business necessity:
The nature and severity of the offense;
The amount of time elapsed since the offense or completion of the sentence; and
The nature of the job held or sought.
In 2007, the Third Circuit, in El v. Southeastern Pennsylvania Transportation Authority, analyzed the
Supreme Court precedent and emphasized the importance of careful factual analysis for criminal record
exclusions. The Third Circuit observed that hiring involves assessing risks, and commented that criminal record
exclusions need to “accurately distinguish between applicants [who] pose an unacceptable level of risk and those
[who] do not.”
Based on the judicial precedents, the proposed Guidance states that there are two circumstances in which the
Commission believes employers will consistently meet the “job related and consistent with business necessity” standard:
First, 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
Second, 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.
Finally, 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.
To provide more guidance about the second circumstance, the proposed Enforcement Guidance provides a
detailed discussion of the three Green factors.
The nature and gravity of the criminal offense
The harm caused;
The elements of the crime; and
Whether it is a misdemeanor or felony.
The time that has passed since the criminal offense or completion of the sentence. Criminal record
exclusions should specify the duration of the exclusion. The exclusion should not be unlimited. This
determination should be fact-based. For example, it could be based on a study or on a federal statutory
exclusion.
The nature of the job held or sought. It is important to carefully assess the job duties and functions, in actual
practice, to develop a narrowly-tailored criminal record exclusion. Employers can consider the level of
supervision, the amount of interaction with co-workers or customers, and the amount of access to vulnerable
individuals, like children.
The proposed Enforcement Guidance then explains 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;
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;
Rehabilitation efforts, e.g., education/training;
Employment or character references and any other information regarding fitness for the particular position; and
Whether the individual is bonded under a federal, state or local bonding program.
The proposed Enforcement Guidance provides numerous examples of policies under the job related and consistent
with business necessity analysis.
Finally, with respect to disparate impact analysis, the proposed Enforcement Guidance explains that, even if an
employer successfully demonstrates that its policy or practice is job related and consistent with business necessity, a
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plaintiff can still prevail if he demonstrates that a less discriminatory, but effective employment policy or
practice was available, but the employer refused to adopt it.
Employment Subject to Other Federal Laws and Regulations
The proposed Enforcement Guidance recognizes that, in certain industries, employers are subject to various federal
laws or regulations that restrict or prohibit the employment or licensing/registration of individuals with certain
convictions. Compliance with a federal law or regulation is a defense to Title VII liability. However, employers will
be subject to Title VII liability if their policies or practices go beyond the mandates of such federal requirements, in a way
that violates Title VII.
Finally, with respect to other federal government matters, the proposed Enforcement Guidance discusses how Title VII
applies these same disparate treatment and disparate impact principles to the federal government as an
employer.
Employment Subject to State and Local Laws or Regulations
Unlike federal laws or regulations, 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. 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 disparate
impact liability.
The Guidance concludes with some best practices for employers.
Thank you for this opportunity to work on, and to present, this proposed Enforcement Guidance for your consideration
today.
Footnote
1
479 F.3d 232 (3d Cir. 2007).
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