Title VII of the Civil Rights Act prohibits discrimination on the basis of race, national origin, religion, sex and other characteristics. According to the EEOC, Title VII also prohibits employers from treating job applicants with the same criminal records differently because of their protected characteristics. That’s called disparate treatment discrimination.
And even when employers apply criminal record exclusions uniformly, applicants from a particular race or ethnic group may find themselves losing out on job opportunities. That’s known as disparate impact discrimination.
For an applicant to sue under Title VII, she can’t merely allege that she suffered because of having a criminal record. She has to show that her rejection falls under one of the two categories.
Recent case: When Linda applied for a job at Target in Minnesota, she was asked if she had a criminal record. She revealed that she had a prior felony conviction. She didn’t get the job.
Linda filed a lawsuit alleging that she had been rejected because of her criminal record, in violations of both Title VII, as well as Minnesota’s “Ban the Box” law, which restricts employers’ use of past criminal convictions when making employment decisions.
Target argued that Title VII does not automatically protect from discrimination everyone with a past criminal record. The court agreed. It said applicants have to show either disparate treatment or disparate impact.
Linda had done neither. She didn’t claim she belonged to a class protected by Title VII that had experienced a disparate impact from criminal records. Nor did she claim she belonged to a protected class that had been specifically targeted for questions about past criminal history. (Raino v. Target, DC MN, 2017)
Note: Linda is free to raise the state claim in a state court later.