Discriminatory Use of Criminal Background Checks

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Who, What, Why . . .

Who does it apply to: All employers that use criminal background checks to evaluate applicants or employees.

What is the issue: Blacks and Hispanics are statistically more likely to be arrested and convicted of crimes than whites. As a consequence, employers who make a blanket rule that any person with an arrest or conviction should not be hired or promoted may be unintentionally discriminating. The EEOC recently used these statistics to force a settlement with Pepsi® over its policy against hiring anyone who has been arrested. Following the settlement, the EEOC issued new guidelines regarding the use of criminal background checks. Are the EEOC’s guidelines law: The guidelines do not change existing law, but they reflect the EEOC’s focus on this issue and its intent to use the statistics against businesses.

How is the discrimination happening: You all know discrimination is illegal. You are probably less clear on the legal framework underlying discrimination, which comes in two forms: “disparate treatment” and “disparate impact”. Disparate treatment involves intentionally treating one employee or a group of employees differently because of a protected characteristic. Disparate impact is a little more subtle. It involves a rule or policy established by an employer that disproportionately affects people in a protected group – here Hispanics and Blacks.

Please see full article below for more information.

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Published In: Administrative Agency Updates, Civil Rights Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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