EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII: Use of Conviction Records in Hiring

March 27, 2008

Dear ____:

This is in response to your letter to the United States Equal Employment Opportunity Commission (EEOC), that our office received on March 18, 2008. You are incarcerated for auto-stripping and are concerned that you will be denied a tow truck license in New York and employment in the auto industry after your release from prison. We will provide you with general guidance on the legality of considering a felony conviction record in an employment decision.

The Commission enforces, among other laws, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII). Title VII prohibits employment discrimination on the bases of race, color, sex, religion, and national origin. Consideration of conviction records in employment decisions may raise issues under Title VII if reliance on conviction records disproportionately excludes members of a protected class. Disqualifying applicants on the basis of conviction records may disproportionately exclude African-Americans or Hispanics.¹

Conviction records may be considered in the employment decision as evidence of conduct that makes an individual unsuitable for a particular position. However, where there is a disproportionate impact based on race or national origin, the employer must demonstrate that it considers the relationship of the crime to the position sought. Specifically, it must consider:

• the nature and gravity of the offense or offenses for which the applicant was convicted;
• the time that has passed since the conviction and/or completion of the sentence; and
• the nature of the job held or sought.

For example, tow truck drivers are typically responsible for seizing and transporting cars that are abandoned, illegally parked, broken down, or being repossessed. Therefore, a tow truck licensing agency or tow truck company could probably justify a policy that rejects applicants who recently completed a sentence for auto-stripping. However, we can address the legality of a specific policy only after a charge has been filed.

After your release, if you seek employment and believe that you have been discriminated against, you may file a charge with the EEOC. You may call 1-800-669-4000 to locate the EEOC field office nearest to you. You may also contact the EEOC’s website at www.eeoc.gov for additional information. For your information, we have attached the following guidance:

• EEOC Compliance Manual, Section 15: Race and Color Discrimination (2006). http://www.eeoc.gov/policy/docs/race-color.html#VIB2conviction
• EEOC Enforcement Guidance No: N-915, “Policy Statement on the Use of Statistics in Charges Involving the Exclusion of Individuals with Conviction Records from Employment,” July 29, 1987. http://www.eeoc.gov/policy/docs/convict2.html
• EEOC Policy Guidance No: N-915, “Policy Statement on the Issue of Conviction Records Under Title VII of the Civil Rights Act of 1964,” February 4, 1987. http://www.eeoc.gov/policy/docs/convict1.html

Also, New York law provides protection for individuals with criminal records. You may contact them at:

New York State Division of Human Rights
One Fordham Plaza, 4th Floor
New York, NY 10458
Phone: 718-741-8400
Fax: 718-741-3214
Website: http://www.nysdhr.com

New York City Commission on Human Rights
40 Rector Street - 9th Floor
New York, NY 10006
Phone: 212-306-7500
Fax: 212-306-7414
Website: http://www.nyc.gov/html/cchr/

Finally, the U.S. Bureau of Prisons has ex-offender employment resources that may be helpful to you, available at https://www.bop.gov/resources/former_inmate_resources.jsp.

We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-12(b).

Sincerely,
/s/
Dianna B. Johnston
Assistant Legal Counsel

Footnotes

¹ The U.S. Department of Justice estimates that 32.2% (1 in 3) of African-American males, 17.2% (1 in 6) of Hispanic males, and 5.9% (1 in 17) of White males are expected to go to prison during their lifetime if current incarceration rates remain unchanged. Bureau of Justice Statistics, U.S. Dep’t of Justice, Prevalence of Imprisonment in the U.S. Population, 1974-2001 8 (Aug. 2003), available at https://bjs.ojp.gov/content/pub/pdf/piusp01.pdf. Due to data limitations, incarceration data is used as an approximation for conviction data. See also, Green v. Missouri Pacific Railroad Company, 523 F.2d 1290 (8th Cir. 1975), appeal after remand, 549 F.2d 1158 (8th Cir. 1977).

This page was last modified on May 6, 2008.

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