Posted in: Employment law, Legal and compliance, Recruiting, Special Report
Suppose you found out an applicant had been arrested four times. Would that enter into the decision about whether to hire? Should it? The answer was revealed in a celebrated Equal Employment Opportunity Commission case.
In the case, the employer, Pepsi Beverages, got dragged before the EEOC to defend the company’s hiring policies on applicants who had arrest records. Some managers with the company flatly refused to hire anyone who had been arrested, especially anyone who had been arrested more than once.
‘There’s smoke — there’s fire’
The managers used the “where there’s smoke, there’s fire” argument — that anyone who’d been arrested multiple time must have been guilty of something, and not worth the risk.
The policy starting turning sour when an African American applicant who had been arrested and had been refused a job by Pepsi went to the EEOC and complained. That got the commission’s attention, and Pepsi was ordered to submit records on which applicants had been denied a job because of the arrest-record policy.
Turns out, the overwhelming numbers of refused applicants were African American — some 300 in all.
EEOC’s ruling on the case (which Pepsi accepted rather than take the fight to court) was that the company:
- was in violation of the Civil Rights Act
- has to pay $3.13 million, most of which will be divided among the black applicants who had been turned down, and offer jobs to such applicants if they’re still interested in working at Pepsi
- must adopt a new criminal-background-check policy
- will supply the EEOC with regular reports on its hiring practices under its new criminal-background-check policy, and
- will conduct Title VII training for its hiring personnel and all of its managers.
What went wrong, what to avoid
There’s nothing wrong, as such, with conducting criminal background checks for applicants. In f act, a survey by the Society for Human Resource Management shows that about 90% of employers conduct such checks at some level.
But companies enter a danger zone when hiring decisions are based on arrests — even multiple arrests — and not convictions. Strictly speaking, arrest records without convictions generally cannot be used as a basis for refusing to hire. And courts are getting touchy even about employers who refuse to hire people who’ve been convicted if there seems to be little relationship between the the crime and the job at hand. For instance, courts ask, why is a conviction for theft grounds for refusing to hire a truck driver?
What’s going on in the background: Studies of public records show that African Americans get arrested (not necessarily convicted) in numbers exceeding their proportion to the population. Thus, a policy taking into account arrest records is deemed to be almost automatically discriminatory.
The bottom line:
- You can conduct criminal background checks and use convictions — not arrests — as a basis for hiring decisions
- To be on the safe side, your decision to refuse to hire should show some relationship between the crime and job; for example, you’d probably be perfectly justified in refusing to hire as a cashier someone convicted of theft, and
- To be on an even safer side, periodically check on the numbers of African Americans who have been refused jobs because of the conviction policy; if the number’s uncommonly high, be certain you have solid documentation to back your decisions.
Related story: Why EEOC wants employers to ignore criminal records.