Employer Discrimination Against Individuals with a Criminal Record: The Unfulfilled Role of State Fair Employment Agencies
Volume 83, No. 4, Summer 2011
By Michael Connett

Lost in the debate about employer discrimination against individuals with criminal records has been the potential availability of disparate impact claims under state law and the underenforcement of such claims by state Fair Employment Practices Agencies (FEPAs). While budget-conscious FEPAs are rightfully weary of disparate impact litigation’s often exorbitant costs, these costs can be effectively mitigated in the criminal record context. Based on the availability of highly probative data on both racial disparities in the criminal justice system and the minimal recidivism risk posed by ex-offenders who have remained crime free for many years, this Comment proposes a set of presumptions that would enable FEPAs to limit their attention to complaints provable at trial without resort to costly statistical analyses. Although disparate impact’s ultimate potential contribution to the reentry process is limited, FEPA involvement would bring significant advantages over current Title VII-based litigation and should be encouraged.

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