According to U.S. Department of Justice statistics, Black men in the U.S. are more likely to be arrested and have criminal convictions on their records than their white counterparts. Last week, a split Second Circuit Court of Appeals affirmed early dismissal of a race discrimination claim based solely on this statistical disparity.

In Mandala v. NTT Data, Inc., two Black applicants received conditional offers of employment that were revoked after background searches revealed criminal convictions. They sued for race discrimination under Title VII, alleging that the employer’s policy of excluding applicants with convictions had a disparate impact against Black people. The district court dismissed the complaint for failure to state a claim recognized under law.

The Second Circuit upheld the lower court decision 2-1. The majority noted that the plaintiffs only cited DOJ statistics showing a nationwide disparity in arrests and convictions based on race. These statistics did not have any relation to the defendant’s specific applicant pool for web development positions. The dissenting judge noted the difficulty in developing such tailored statistical information early in litigation and would have allowed the claim to proceed to discovery.

In 2012, the U.S. Equal Employment Opportunity Commission issued an enforcement guidance update on the use of criminal arrests and convictions in the hiring process. The guidance noted the risk that blanket policies against hiring applicants with criminal records ran the chance of violating Title VII due to the statistical disparities in arrests and convictions based on race. The EEOC recommended that employers make individual decisions when it comes to such convictions based on the age of the conviction, its seriousness, and the connection between the crime committed and the specific job duties. Although the employer in this case prevailed, a more tailored approach toward criminal convictions can avoid such disparate impact discrimination claims in the first place.