Title VII

While Title VII does not prohibit employers of requiring to provide arrest and conviction records. But it is unlawful to use this information for employment based on race, color, national origin, religion, or sex. Two examples of misuse that causes a violation of Title VII to occur:

Disparate Treatment. The Act does ban employers from treating individuals with similar criminal records differently on account of race, color, national origin, religion, or sex. An employer may face liability for disparate handling if it hires white applicants with criminal backgrounds over minority job seekers that have similar experience, qualifications and have the same criminal histories.

Disparate Impact. The Act bans employers from using backgrounds in a fashion which disproportionately excludes members of a protected class, even if the underlying policies or practices are neutrally applied to all applicants and employees. When a policy has been challenged as to have a disparate impact under Title VII, an employer must show that the policy is "job related for the position in question and consistent with business necessity." The employer faces liability if it fails to utilize a less discriminatory alternative policy that serves its legitimate hiring goals as effectively as the challenged practice. Disparate discrimination may arise, when an employer has a policy against hiring using any criminal conviction, whether it has no adverse relationship to position being considered. Policies can have a discriminatory impact on minority groups with conviction records disproportionate to the numbers of the general population. An employer who displays evidence of a racially balanced workforce does not automatically disprove a claim of disparate impact discrimination.

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