After coming to a settlement agreement with Pepsico back in April, the Equal Employment Opportunity Commission set its sight on pre-employment background checks and the disparate impact such checks have on minority job candidates.
According to the lawsuit, Pepsi did checks on all applicants. These checks included arrest records and convictions, and were done regardless of the relevance to the job.
The policy, while facially race-neutral, resulted in a disparate impact on minority candidates.
Now, the EEOC has released new 'guidelines' about when employers should be doing background checks. Some attorneys interpret the new rules to place a presumption that considering criminal history is illegal due to the disparate impact on minorities, reports MSNBC.
The gist of the guidelines is that if you choose to use background checks, be prepared to demonstrate that they are necessary and related to the job description. While it won't be necessary to demonstrate it to applicants, if the EEOC comes calling, you'll have to either justify your background checks to them or to the court when they sue on the "discriminated" employee's behalf.
They also want you to ignore arrests not leading to convictions -- we are innocent until proven guilty, after all -- and to ignore really old convictions, especially if they have nothing whatsoever to do with the job at hand.
MSNBC does provide some interesting criminal conviction statistics that really illustrate the evil that the EEOC seeks to cure. Seventy-three percent of employers do background checks on all employees, regardless of their position. While only 1 in 17 Caucasian males will do time in prison, the ratio is closer to 1 in 3 for black males.
Based on that data, a disparate impact does seem inevitable.
On the other hand, is there any job where an employee's background is completely irrelevant? Also, though we are all innocent until proven guilty, is it unreasonable for an employer to choose a candidate without an arrest record over someone that had 15 arrests for larceny with no convictions, especially if the applicant wants a job as a bank teller?
For many, the EEOC provides a valuable service. They represent the oppressed employee that cannot afford legal counsel and right the wrongs that often happen when employers place profits or prejudice over laws regarding discrimination. However, with these new rules, they might also be making it more difficult to employ anyone in a bad economy.
- Speak to a Chicago Employment Lawyer (FindLaw)
- Race Discrimination (FindLaw)
- Looking for a Job? Learn About Your Rights as an Applicant (FindLaw's Chicago Employment Law Blog)
- Illinois Employment Background Check Laws (FindLaw's Chicago Employment Law Blog)