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EEOC warns employers about criminal background checks

Earlier this year the Equal Employment Opportunity Commission issued guidance that made it clear to employers that discriminating against an applicant solely on the basis of their criminal history was no longer allowed. The guidance was issued in response to the apparently discriminatory effect of rejecting all job applicants with a criminal history, since those hiring practices affected minority applicants more than white applicants.

Still, the EEOC didn't ban employers from considering an applicant's criminal history entirely. Instead, the employers must use a more nuanced approach and do-away with blanket policies that could unfairly discriminate against protected groups.

One particularly high-profile case that brought this issue to light was a policy maintained by Pepsi, Co., which denied a large number of African-American job applicants because of minor convictions or past arrests. The beverage company paid $3.13 million in lost wages to those applicants and also revised its hiring process to avoid similar situations in the future.

In order to avoid discrimination liability, employers must consider the relevancy of the criminal history carefully. The EEOC guidance suggests that employers consider the date of the alleged offense, the nature of the crime, and whether the crime relates in any way to the job duties. The guidance also recommends that employers provide applicants with an opportunity to discuss their criminal history and explain the circumstances.

Job seekers who believe they are being summarily denied work because of a criminal history may be eligible to pursue an action for damages against potential employers who have not hired them.

Source: Pittsburgh Post-Gazette, "Denying employment based on criminal background could lead to suits, feds say," Ellen Jean Hirst, Nov. 12, 2012.

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