We previously reported on Pepsico's settlement with the Equal Employment Opportunity Commission for $3.1 million. The suit was brought because Pepsi used background checks in the hiring process, which had a disparate impact on minority candidates. In addition to considering arrests as well as convictions, Pepsi was using background checks, regardless of the importance of the job.
The EEOC only wants background checks done when the applicant's background is "job-related and of business necessity." Pepsi capitulated, cut a check, and changed their internal policies.
Now, the EEOC has released new 'guidelines' about when and where and how background checks should be conducted. Some attorneys interpret the new rules, which are worded very similarly to the statements made in the wake of the Pepsi settlement, to place a presumption that considering criminal history is illegal due to the disparate impact on minorities, reports MSNBC.
The new rules essentially state that background checks should only be used when they relate to the job, and even then, if the crime is old and unrelated, it should not be considered. Arrests not leading to convictions should also not be considered.
An EEOC spokeswoman is quoted as saying that the EEOC does not have the authority to ban the use of criminal background checks or arrest records, but they do want to make sure it is done carefully.
Otherwise, they will sue you like they did to Pepsi.
MSNBC also provided a few interesting stats. Background checks are currently used by 73% of employers on all employees. Only one in seventeen while males will see the inside of a prison cell, while one in three black males will. A disparate impact does seem likely if background checks are used indiscriminately.
However, are there actually any jobs out there where the employee's background is completely irrelevant?
- Find a Philadelphia Employment Attorney (FindLaw)
- Erroneous Background Checks Cost Jobs, Violate Law? (FindLaw's Philadelphia Employment Law Blog)
- EEOC Enforcement Guidance for Background Checks (EEOC, PDF)
- Pre-Employment Background Check Laws (FindLaw)