By Lillian Kae Yoo
The U.S. Equal Employment Opportunity Commission (EEOC) enforces federal law and prohibits employers from discriminating against prospective employees based on race, color, religion, sex, or national origin. Under Title VII of the Civil Rights Act of 1964, having a criminal record or being a felon is not a protected category. However, when an employer uses an individual’s criminal record in making employment decisions, without a legitimate business justification, the employer may be in violation of Title VII. In evaluating whether an employer unlawfully discriminated against a felon, the EEOC uses two analytic frameworks: “disparate treatment” and “disparate impact.”
An employer may be in violation of Title VII under the disparate treatment principle when an employer treats a person differently than other applicants or employees, based on a protected class. For example, disparate treatment occurs when an employer rejects an African-American applicant due to an old drug conviction but hires a White applicant with a similar criminal record, reasoning that the conviction is unimportant due to the lapse of time and the White applicant’s youth at the time of the conviction. Thus, when an employment decision is based on racial stereotypes of criminality, rather than a neutral business justification, an employer may be held liable for discrimination under Title VII.
Slightly more nuanced is the principle of disparate impact. An employer may be in violation of Title VII under a disparate impact theory when a seemingly neutral employment rule or practice disproportionately screens out a protected group and no business necessity exists for the rule or practice. This principle is relevant as national data indicates that African-Americans and Hispanics are arrested and incarcerated at significantly higher rates than Caucasians. As a result, when employers have a blanket rule against employing individuals with criminal records, this seemingly neutral policy has a disproportionate impact on African-Americans and Hispanics. If a challenge is raised to the employer’s rule or policy, the employer must demonstrate that the practice is related to the job in question and is consistent with business necessity. If an employer is unable to establish a legitimate business reason for the policy to exclude felons, an employer who refuses to hire an applicant based solely on his felony conviction may potentially face a lawsuit alleging that its hiring practice has a disproportionate impact on racial minorities and thus, violates Title VII.
The National Collegiate Athletic Association (NCAA) is a recent subject of a disparate impact claim. On January 11, 2017, Coach Hardie, an African-American youth basketball coach with a felony drug conviction, urged the Ninth Circuit Court of Appeals to overturn NCAA’s rule barring felons from coaching in NCAA-sanctioned tournaments. In 2011, NCAA changed its policy to remove an exception that allowed nonviolent offenders to coach in NCAA-sanctioned tournaments if the conviction occurred more than seven years ago. According to Coach Hardie’s Complaint, NCAA’s new policy prevents him from continuing to coach two high school girls’ basketball teams that travel to NCAA-certified tournaments because of his 2001 conviction for possession with intent to distribute less than a gram of cocaine.
As Coach Hardie was not employed by NCAA but rather, was effectively barred from coaching due to its prohibition against ex-felons in NCAA-sanctioned events, Coach Hardie filed suit under Title II of the Civil Rights Act of 1964. Similar to Title VII, Title II is also a federal law that prohibits discrimination based on race, color, religion, or national origin, but it applies to places of public accommodation.
Under Title II, Coach Hardie alleged that NCAA’s policy had a disparate impact on African-Americans and was discriminatory. Specifically, Coach Hardie alleged that NCAA’s policy was unlawful because 80 percent of the coaches that are barred from participating in NCAA-sanctioned events were African-Americans.
However, unlike Title VII, Title II did not explicitly allow for liability under the disparate impact principle. Based on that reasoning, the District Court dismissed Coach Hardie’s Complaint in March 2015.
Soon after the District Court dismissed Coach Hardie’s Complaint, the Supreme Court ruled in another case that Title II allows for disparate impact liability. Based on the Supreme Court’s new ruling, Coach Hardie appealed his case to the Court of Appeals.
On appeal, NCAA conceded that while its policy may have a racially disparate impact, and that liability is now possible under Title II, NCAA argued that its policy had a legitimate justification and there is no alternative that would lower the degree of racial disparity. The Court of Appeals took the matter under submission and many organizations and employers await the Court of Appeals’ decision for further guidance on avoiding disparate impact liability.
For now, our law enforcement friends may rest assured that there are obvious and legitimate grounds for a policy barring felons from becoming police or correctional officers. However, should an agency allow the hiring of an individual with a criminal record, they must be cautious that they do not unwittingly discriminate against a protected class under either the disparate treatment or disparate impact theories.