SEP 2016

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Page 97 of 124 | SEPTEMBER 2016 95 This was determined to be racially discriminatory. The problem didn't lie in the fact that criminal background checks were being used; it was in how they were being used. It was Pepsi's policy to screen all applicants via criminal background checks and not to hire anyone with any type of criminal record. If a com- pany screens all applicants regard- less of ethnicity, and if someone is disqualifi ed based on a criminal record, and if that rule is applied equ ally across all races, how can it be discriminatory? The Supreme Court has held that even if an employ- ment policy is, on its face, neutral, it can still be discriminatory if the policy disproportionally impacts a protected class of people. Federally protected classes encompass race, color, religion or creed; national origin or ancestry; sex; age; physical or mental disability; veteran status; genetic information; and citizenship. Pepsi was denying employment to anyone who had any kind of crim- inal background—including peo ple who were convicted of relatively mi- nor offenses and those who were charged but not yet convicted. It's a fact that African Americans and Hispanics have higher arrest and conviction rates than other ethnic groups. Pepsi's blanket policy there- fore excluded more African Ameri- cans from employment. In many cases, the blanket policy denied em- ployment even for minor offenses or ones completely unrelated to the job in question. No doubt Pepsi had many more applicants to consider, so they could afford to be choosy. And no doubt the "no criminal record of any kind" policy is easy to apply. However, it falls heavily on minorities. The EEOC has issued the following guidelines that form the perfect counterpoint to Pepsi's "one-size-fi ts-all" applica- tion of criminal background checks, and they should serve anyone in a position to hire: • An employer needs to consider the nature and gravity of the offense. (In other words, don't reject someone from employment based on "fi shing without a license" or "littering.") • An employer should take into account when the crime occurred. (An offense committed 15 years ago should not necessarily carry the weight of the same crime committed last year. Some people do learn from their mistakes.) • There must be some rational relationship between the criminal offense and the job the employee would be performing. (So, if the open position is for a delivery driver and the applicant's criminal background check reveals a Professional Quality Skin Treatment Products Backed By 35 Years Of Innovation, Success And Real Results Back Bar / Retail d e a e s u t s B a c k B a r / R e t a i l WWW.RAYAL AB.COM / 800.525.7292 / 818.760.6655

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