Disparate Impact Challenges to Criminal Conviction Checks Under Title VII of the Civil Rights of 1964
摘要
This chapter provides a brief survey of disparate impact law under Title VII as applied to challenges to employers’ use of criminal conviction information in background checks. Despite the fanfare around the 2012 publication by the EEOC of comprehensive guidance on the topic, many critical questions about disparate impact law remain unanswered in this context. There are highly consequential open questions regarding how to specify the employment practice used by the employer in this context as well as how to structure the statistical analyses to evaluate causation. The wide variation in criminal conviction histories presented by candidates as well as the often highly segregated geographic occupational labor markets create a number of seemingly intractable causation puzzles. Validation of criminal conviction checks is not addressed expressly in the Uniform Guidelines on Employee Selection Procedures and courts have suggested justification methods that do not depend on the types of technical validation standards outlined in those Guidelines. In the past 50 years, neither the EEOC nor the federal courts have provided definitive guidance on many of these critical issues. Further, questions emerge regarding class treatment of disparate impact challenges to criminal conviction checks, recently presented by Supreme Court rulings that have refined the standards for class certification and Article III standing. The chapter cannot provide answers to the open questions—a duty solely for the federal courts—but it does provide selected analyses and commentary pointing toward potential answers to some of the issues.