EEOC creates new guidelines for employers using criminal records in employment screening

Last month the Equal Employment Opportunity Commission (EEOC) voted to create new Guidance regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964. Criminal background checks have become increasingly popular as a means for employers to, among other things, lessen the potentially tragic and expensive claims of failure to supervise or negligent hiring.

In the past the EEOC had at least partially disavowed criminal checks except in very limited industries because they were considered to be disproportionately negative for certain minorities.

The new EEOC guidance reiterates the four factors used to determine whether an employer’s hiring and other employment decisions and policies relating to criminal background checks violate the law:

  1. Convictions as opposed to arrests
  2. The nature and gravity of the offense or conduct
  3. Time that has passed since the offense
  4. The nature of the job held or sought.

It also provides specific examples of criminal background policies which the EEOC believes violate Title VII.

The EEOC also suggests employees who undergo criminal background checks should be told that they were denied the job because of a criminal conviction, and that there would have to be an opportunity for that applicant to demonstrate either that the screen was inaccurate or to state why they should not be denied the job. The employer would also have to review any additional information provided by the prospective employee regarding the conviction or their credentials.

There are many more details about the EEOC’s new guidance. We suggest every employer read the full guidance at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

 

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Pepsi agrees to $3.13 million settlement for background check policy that violated Civil Rights Act

Pepsi Beverages has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed at the U.S. Equal Employment Opportunity Commission (EEOC) regarding its previous pre-employment screening policy.

According to the press release put out by the EEOC, the commission’s investigation revealed that “more than 300 African-Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment. Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any Buy Cialis offense.”

The press release continues: “Pepsi’s former policy also denied employment to applicants from employment who had been arrested or convicted of certain minor offenses. The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.”

Pepsi has since adopted a new criminal background check policy. The settlement will mostly be divided among black applicants for positions at Pepsi.

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