Discrimination Based on Criminal Conviction

Capable Employment Law Attorney Serving the Atlanta Area

Arrests and criminal convictions can have long-lasting consequences. Many employers run background checks on job applicants and use those checks to make employment decisions. While sometimes employers may have a legitimate reason to consider a candidate’s criminal history, both state and federal laws provide protections to prevent misuse of such information. If you have a concern involving criminal conviction discrimination, the employment law lawyers at Parks, Chesin & Walbert have a thorough understanding of how these rules affect workers and companies in the Atlanta area.

Prevalence of Criminal History

In 2003, the Department of Justice Bureau of Statistics published a Special Report on the prevalence of imprisonment, reviewing data from 1974-2001. The Bureau used the data to estimate the lifetime likelihood of imprisonment for various populations of U.S. residents. The Bureau estimated that one in 17 white males, one in six Hispanic males, and one in three black males were expected to be incarcerated in state or federal prison during their lifetimes if the incarceration rates did not change. Employers’ use of criminal history to exclude candidates for employment therefore affects some racial and ethnic groups more than others.

Protections Under Georgia Law

In Georgia, a person who pleads guilty or nolo contendere may, under certain circumstances, be placed on probation or confined without an entry of judgment of guilt, pursuant to the First Offender’s Act. A discharge under this law is not considered a conviction and may generally not be used to disqualify a job applicant. O.C.G.A. § 42-8-63. The Act contains exceptions for schools, child welfare agencies, and facilities providing care for the elderly, mentally ill, or developmentally disabled. However, these exceptions only allow employers to consider crimes that are specified in the statute. Entities may also consider crimes of moral turpitude discharged under the Act when hiring peace officers. Unfortunately, the First Offender’s Act does not provide for a civil remedy if an employer violates the statute, and case law holds that there is no private cause of action arising from the statute.

Title VII of the Civil Rights Act of 1964 (“Title VII”)

The Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, age, sex, or religion. Use of a criminal record in making employment decisions is not barred by Title VII, but it can result in discrimination through the disparate treatment of or disparate impact on a protected class. The EEOC has published guidance on this issue.

Disparate treatment occurs when members of different groups are treated differently despite being similarly situated. A claim based on disparate treatment is essentially a claim of discrimination based on race, color, national origin, age, sex, or religion. Statistical evidence based on the employer’s applicants, workforce, and criminal history data can help show whether it improperly weighs criminal history more against a particular group.

Disparate impact occurs when a facially neutral policy or practice disproportionately screens out members of a protected group, and the policy or practice is not job-related and consistent with business necessity. The relevant question is whether a disproportionate number of protected individuals have been deprived of employment opportunities, regardless of whether the workforce is racially balanced.

Once a plaintiff shows disparate impact, the burden shifts to the defendant to show that the practice is job-related and consistent with business necessity. The employer can generally meet this standard by validating the screening for the particular position according to specific standards. Alternatively, the employer may meet the standard by developing a targeted screening that takes into account the nature of the crime, the time that has passed since the crime occurred or the sentence was completed, and the nature of the job, and then individually assessing the people who are screened out to determine if the policy is in fact job-related and consistent with business necessity.

Even if the employer is able to make this showing, the plaintiff may still be able to win his or her case by showing that the employer could have achieved the same goals using a less discriminatory practice.

Remedies available under a Title VII claim may include back pay, compensatory damages and even punitive damages. Under some circumstances, reinstatement or an injunction may be available. A charge must be filed with the EEOC within 180 days, or the claim will be barred, so swift action is vital.

Discuss Your Workplace Discrimination Issue with an Atlanta Lawyer

The employment discrimination attorneys at Parks, Chesin & Walbert can help both employers and employees throughout Atlanta by using their thorough understanding of state and federal laws in this complex area. If you have a legal issue involving criminal conviction discrimination, call us at 404-873-8048 or contact us online to set up an appointment.