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.