Disparate impact and disparate treatment are both inequitable practices in employment, practices that lead to an adverse impact on an individual or group. Disparate impact is, typically, unintentional — there is no deliberate or planned policy that led to the disparate impact. Remember the part we had mentioned about being careful not to discriminate by checking criminal backgrounds only certain employees and not all? When an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (something called disparate treatment liability), it is considered a violation of EEOC guidelines.
Further, the EEOC states: “An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).”
Note: Compliance with other federal laws and/or regulations that conflict with Title VII is a defense to a charge of discrimination under Title VII.
Basically, under EEOC guidelines, arrest records by themselves cannot be used to exclude persons from employment. For instance, if you have the bad luck to have been arrested for not having a fishing license (yes, you do need fishing licenses in many states and could be arrested for fishing without one!), you could reasonably expect that the arrest will not be related to job function unless you’re a wildlife inspector or a park ranger or something similar. However, conduct that appears to point to someone being unsuitable to hold a certain role, like Andrew in the above example, is a basis for exclusion. An arrest may trigger an inquiry into whether the conduct underlying the arrest justifies such action.