Criminal Record Discrimination:
Disparate Treatment or Disparate Impact?
On the Federal Level, Criminal Record or Arrest History Discrimination can take two distinct forms:
According to Title VII of the Civil Rights Act of 1964, employers must give equal treatment to all employees with similar
criminal records, regardless of their race, national origin, age, gender, disability, pregnancy status or religion. This means that under this act all persons with similar felony convictions must be treated similarly with regard to employment exclusion, regardless of belonging to one of the above named groups.
Disparate Impact Discrimination
When potential employees are excluded based upon their criminal record, and the effect of this exclusion effects one particular group more than others, or “disproportionately,” the employer must show that these exclusions are “job related and consistent with business necessity” under Title VII to avoid liability.