Monday, October 31, 2011

EEOC Issues Advisory Opinion on Use of Arrest & Convictions Records in Hiring Process

As most Wisconsinites are aware, the Wisconsin Fair Employment Act (WFEA) specifically prohibits discrimination in employment based upon arrest and conviction record.  However, most states do not provide this protection and there is no federal law to protect the entire country which has cased the Equal Employment Opportunity Commission (EEOC) to get creative and innovative to find a cause of action where protection is needed and a trend in employment discrimination is occurring.  As can be reasonably understood. minorities tend to be the impacted most by arrest & conviction discrimination so the EEOC has announced that it will consider disparate impact suits under Title VII of the Civil Rights Act of 1964 where they see fit.  Specifically, in an unbinding advisory opinion letter, the EEOC stated that it:
(1) will continue to differentiate between arrest and conviction records; (2) may not be prepared to adopt a presumption of disparate impact in this context; and (3) will in the event of a finding of disparate impact, closely scrutinize the employer's policy with regard to both how long convictions are disqualifying and whether the underlying criminal conduct is related to the job duties for the position in question.
This position by the EEOC impacts Wisconsin residents little except for maybe where a class-action type of action could be considered.  Though Wisconsin offers arrest & conviction record discrimination, it does remain an unclear area that has little court and administrative law precedent and appears to be applied inconsistently by the Equal Rights Division.  I enjoy and get excited about interesting and blatant violations under the WFEA but it can be discouraging given the law's inconsistent application of the "substantially-related" defense and sometimes bizarre application but I always encourage complainants to pursue their rights under the WFEA.

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