When employers use criminal background checks in their hiring decisions, they may unintentionally create barriers that disproportionately affect certain racial and ethnic groups. While these policies might appear neutral on the surface, their effects are anything but equal. This legal concept, known as “disparate impact,” provides a powerful framework for challenging criminal record discrimination that might otherwise seem difficult to address.
At Nisar Law Group, we’ve helped numerous clients navigate the complexities of disparate impact claims related to criminal record discrimination. Understanding this legal approach can be crucial for both job seekers facing barriers and employers seeking to develop fair, legally compliant hiring practices.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
Understanding Disparate Impact Theory
Unlike intentional discrimination (known as “disparate treatment”), disparate impact focuses on the effects of a policy rather than the intent behind it. This distinction is critical because it allows legal challenges to policies that appear neutral but disproportionately harm protected groups.
Disparate impact theory has its roots in the landmark Supreme Court case Griggs v. Duke Power Co. (1971), which established that Title VII of the Civil Rights Act prohibits not just intentional discrimination but also practices that are “fair in form, but discriminatory in operation.” The Court recognized that seemingly neutral policies can perpetuate discrimination just as effectively as intentional bias.
When applied to criminal record discrimination, disparate impact theory acknowledges a sobering reality: our criminal justice system has well-documented racial disparities at every stage—from policing and arrests to charging decisions, convictions, and sentencing. These disparities mean that blanket policies excluding applicants with criminal records will inevitably screen out a disproportionate percentage of Black and Hispanic applicants.
National data consistently shows these disparities. For example:
- Black Americans are incarcerated at more than five times the rate of white Americans
- Hispanic Americans are incarcerated at 1.3 times the rate of white Americans
- These groups are also disproportionately represented in arrest statistics and other criminal justice interactions
These disparities create the foundation for disparate impact claims when employers use criminal records to screen candidates without appropriate limitations and individualized assessment.
The Three-Step Framework for Disparate Impact Claims
Disparate impact claims for criminal record discrimination typically follow a three-step burden-shifting framework:
Step 1: Establishing Disparate Impact
The first step requires showing that a criminal record screening policy disproportionately excludes members of a protected class. This can be demonstrated through:
Statistical Evidence:
- National statistics showing racial disparities in the criminal justice system
- Local statistics that may show even more pronounced disparities in certain regions
- Applicant flow data comparing rejection rates by race for candidates with criminal records
- Workforce data showing underrepresentation of protected groups
Policy Analysis:
- Examination of how broadly the policy excludes applicants with records
- Whether the policy considers factors like the nature of the offense, time elapsed, or job-relatedness
- The existence of automatic exclusions based on any criminal history
This statistical showing doesn’t need to be complex mathematical modeling in all cases. Courts have recognized that national data on racial disparities in the criminal justice system can help establish a prima facie case of disparate impact, particularly for smaller employers who may not have enough applicants to generate meaningful statistics.
Step 2: Business Necessity Defense
Once disparate impact is established, the burden shifts to the employer to prove that the challenged practice is “job-related for the position in question and consistent with business necessity.” For criminal record exclusions, this means demonstrating that:
- The policy accurately distinguishes between applicants who pose an unacceptable risk and those who don’t
- The criminal conduct being screened is relevant to the specific position
- The exclusion considers appropriate time limitations
The EEOC has identified two ways employers can meet this business necessity standard:
- Validation Study: Statistically validating that specific criminal conduct is associated with subsequent workplace issues (rarely used due to practical challenges)
- Targeted Screen + Individualized Assessment: More commonly, using a narrowly tailored screen that considers:
- The nature and gravity of the offense
- The time elapsed since the offense or completion of sentence
- The nature of the job sought
This second approach also requires giving excluded individuals an opportunity for individualized assessment, where they can provide additional information to show the exclusion shouldn’t apply to them.
Courts generally scrutinize whether there is an actual relationship between the criminal conduct and the job requirements, not just generalized concerns about all people with criminal records.
Step 3: Less Discriminatory Alternative
Even if an employer demonstrates business necessity, a plaintiff can still prevail by showing that there was a less discriminatory alternative that would serve the employer’s legitimate interests, but that the employer refused to adopt it.
Less discriminatory alternatives might include:
- Narrowing the types of convictions considered to only those truly relevant to the position
- Implementing time limitations on how far back the employer looks for criminal history
- Using individualized assessments rather than blanket exclusions
- Delaying criminal background checks until after a conditional offer is made
- Considering evidence of rehabilitation
This third step provides an important check against unnecessarily broad policies that create avoidable disparate impact.
Key Cases Shaping Disparate Impact Claims
Several significant cases have shaped how courts analyze disparate impact claims for criminal record discrimination:
EEOC v. Freeman (4th Cir. 2015)
While the EEOC ultimately lost this case due to issues with its statistical analysis, the court did not reject the underlying theory that criminal background checks can create disparate impact. Instead, it emphasized the importance of reliable statistical evidence and proper analysis.
El v. Southeastern Pennsylvania Transportation Authority (3rd Cir. 2007)
This case involved a transit authority’s policy of excluding applicants with violent criminal convictions from driving positions. While the court accepted the business necessity of screening for certain serious crimes for positions transporting vulnerable passengers, it emphasized that employers must justify their specific policies with evidence showing why the exclusion is consistent with business necessity.
Green v. Missouri Pacific Railroad (8th Cir. 1975)
This early case established important principles that still guide courts today. The Eighth Circuit found that the railroad’s blanket policy of refusing to employ anyone with a criminal conviction, except for minor traffic offenses, violated Title VII due to its disparate impact. The court identified three factors that should be considered when evaluating criminal record exclusions:
- The nature and gravity of the offense
- The time that has passed since the conviction and/or completion of the sentence
- The nature of the job held or sought
These same three factors were later incorporated into the EEOC’s guidance and continue to shape how courts evaluate these claims.
Gathering Evidence for Disparate Impact Claims
Proving disparate impact typically requires substantial evidence. Here are the key types of evidence that can support these claims:
Statistical Evidence
Statistical disparities can be shown through:
- Applicant flow data: Comparing the rate at which different racial groups with criminal records are excluded by the policy
- Labor market statistics: Showing the racial composition of the qualified labor pool with criminal records
- National criminal justice data: Demonstrating the racial disparities in arrests and convictions relevant to the employer’s screening criteria
- Census and labor force data: Establishing the baseline demographics for comparison
The statistical comparison must be properly focused on the relevant labor market and the specific policy at issue. Simply showing general racial disparities in criminal justice may not be sufficient without connecting these disparities to the specific policy being challenged.
Policy Documentation
Evidence about the employer’s policy should include:
- Written background check policies and procedures
- How criminal history information is used in decision-making
- Whether the policy includes individualized assessment
- How consistently the policy is applied
- Any business justification documentation
- Training materials for those implementing the policy
This documentation helps establish exactly what the policy is and how it operates in practice, which is essential for both proving disparate impact and addressing the business necessity defense.
Comparative Evidence
Evidence showing how different candidates were treated can be particularly valuable:
- Comparisons between similarly situated individuals of different races with similar criminal histories
- Evidence of non-minorities with criminal records who were hired
- Documentation of qualified minority candidates rejected solely due to criminal history
- Anecdotal evidence from affected individuals that puts a human face on the statistical disparities
This comparative evidence can strengthen the statistical case and demonstrate the real-world impact of the challenged policies.
Practical Considerations for Bringing Disparate Impact Claims
Several practical factors should be considered when pursuing or defending against disparate impact claims:
EEOC Administrative Process
Before filing a lawsuit alleging disparate impact discrimination, individuals must typically file a charge with the EEOC and receive a Notice of Right to Sue. This administrative process includes:
- Filing a charge within 180 or 300 days of the discriminatory act (depending on state)
- Participating in the EEOC’s investigation
- Potentially engaging in conciliation efforts
- Receiving a Right to Sue letter before proceeding to court
The EEOC may choose to pursue the case itself, particularly if it appears to involve systemic discrimination affecting multiple people.
Class Action Potential
Disparate impact claims often involve policies affecting many applicants, making them potentially suitable for class action treatment. Consider:
- Whether the policy was applied consistently across a group of applicants
- If there are enough affected individuals to justify class treatment
- The commonality of legal and factual questions across potential class members
- The typicality of the lead plaintiff’s experience
- Whether class-wide relief would be appropriate
Class actions can distribute litigation costs across many plaintiffs and potentially create more pressure for systemic policy changes, but they also involve additional procedural complexities and certification requirements.
Remedies Available
Successful disparate impact claims can result in various remedies:
- Injunctive relief requiring policy changes
- Back pay for opportunities denied
- Front pay when reinstatement isn’t feasible
- Compensatory damages (in some circumstances)
- Attorney’s fees and costs
- Potential monitoring of revised hiring practices
The specific remedies available may depend on whether the case is brought by the EEOC or private plaintiffs, and the particular facts of the case.
Guidance for Employers: Avoiding Disparate Impact Liability
Employers can take proactive steps to minimize the risk of disparate impact claims while still addressing legitimate safety and security concerns:
1. Develop Narrowly Tailored Policies
Create criminal background check policies that:
- Focus only on convictions that are job-related for the specific position
- Consider the nature and gravity of the offense, time elapsed, and nature of the job
- Avoid blanket exclusions based on arrest records or any criminal history
- Establish reasonable time limits for considering past convictions
This targeted approach helps ensure that criminal history is considered only when genuinely relevant to the position.
2. Implement Individualized Assessment
When a criminal history raises concerns:
- Notify the applicant that they may be excluded based on their criminal record
- Provide an opportunity to present evidence that the policy shouldn’t apply in their case
- Consider evidence of rehabilitation, character references, employment history, and other relevant factors
- Document the assessment process and the reasoning for the final decision
This individualized approach helps avoid unjustified exclusions while still allowing employers to address legitimate risks.
3. Conduct Periodic Impact Analyses
Regularly review your hiring data to:
- Identify any disparities in selection rates based on race or other protected characteristics
- Evaluate whether criminal background checks are contributing to these disparities
- Determine if policy adjustments are needed to reduce any identified disparities
- Document your analysis and any resulting policy changes
These proactive analyses can help identify potential issues before they result in legal challenges.
4. Train Decision-Makers
Provide thorough training to anyone involved in the hiring process on:
- How to properly apply criminal background check policies
- The importance of individualized assessment
- Proper documentation of decision-making
- The legal risks of inconsistent application or exceptions
- Avoiding stereotypes or assumptions about people with criminal records
Well-trained staff is essential for implementing even the best-designed policies effectively.
5. Consider Timing of Background Checks
Delay criminal background inquiries until later in the hiring process:
- Remove criminal history questions from initial applications
- Conduct background checks only after a conditional offer or at least an initial assessment of qualifications
- Consider adopting “Ban the Box” principles even if not legally required in your jurisdiction
This approach ensures candidates are first evaluated on their qualifications rather than being automatically screened out based on criminal history.
Guidance for Job Seekers Facing Discrimination
If you believe you’ve experienced discrimination due to a criminal record, consider these steps:
Understand Your Rights
Familiarize yourself with:
- The EEOC’s guidance on criminal background checks
- State and local “Ban the Box” or fair chance hiring laws that may apply
- Industry-specific restrictions that may legitimately limit certain opportunities
- Time limits for filing discrimination complaints
This knowledge helps you recognize when your rights may have been violated.
Document Everything
Keep detailed records of:
- When and how criminal history information was requested
- Any communications regarding your criminal history
- The specific policy the employer applied (if you can obtain it)
- Whether you were given an opportunity for individualized assessment
- Similarly situated applicants of different races who were treated more favorably
- Any explanations provided for adverse decisions
This documentation can be crucial evidence if you decide to pursue a legal claim.
Consider Filing an EEOC Charge
If you believe a criminal background check policy had a disparate impact:
- File a charge with the EEOC within the applicable time limits (180 or 300 days depending on your state)
- Provide as much detail as possible about the policy and its impact
- Explain why you believe the policy has a disparate impact on your racial or ethnic group
- Identify any less discriminatory alternatives that could have been used
The EEOC can investigate and potentially take action on your behalf, or provide you with a Right to Sue letter so you can pursue your own case.
Seek Legal Assistance
An experienced employment attorney can:
- Evaluate the strength of your potential disparate impact claim
- Help you understand additional protections under state or local law
- Guide you through the EEOC process
- Represent you in potential litigation
- Advise you on potential remedies and settlement options
Many attorneys offer free initial consultations to evaluate potential claims.
Conclusion: Toward Fair Opportunity for All
Disparate impact theory provides a vital legal framework for addressing criminal record discrimination that might otherwise escape legal scrutiny. By focusing on the effects of policies rather than the intent behind them, this approach recognizes that seemingly neutral practices can perpetuate historic patterns of discrimination.
For employers, understanding disparate impact liability creates incentives to develop fairer, more targeted criminal background check policies that properly balance legitimate business concerns with equal employment opportunity. For job seekers with criminal records, disparate impact claims offer a potential pathway to challenge overbroad exclusions that create unnecessary barriers to employment.
At Nisar Law Group, we’re committed to advancing employment practices that provide fair opportunities while respecting legitimate business needs. Whether you’re an employer seeking to develop legally compliant policies or a job seeker facing potential discrimination, we’re here to provide the guidance you need. Contact us to discuss your specific situation and explore your options under this important area of law.
By working together to address the disparate impact of criminal record screening policies, we can build more inclusive workplaces that judge people on their qualifications and current character rather than their past mistakes.
