EEOC Issues “Arrest and Conviction Records” Guidance

By Richard Lehr

During the past several years, the Equal Employment Opportunity Commission (EEOC) has increased its focus on employers’ use of background check information, particularly arrest and conviction records. On April 25, the EEOC issued its revised “Enforcement Guidance on Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.” The original guidance was issued in 1987 and revised in 1990.

The commission has asserted for several years that arrest and conviction records have a discriminatory impact on African American and Hispanic applicants. Perhaps a culmination of the EEOC’s initiative occurred a month ago with a settlement of more than $3 million with PepsiCo. In that case, discrimination was alleged in the application process based on the use of criminal background information in selecting African American applicants. read more…

Categories: Agency Insight


Disability Charges and Enforcement on the Rise

Since the enactment of the ADA Amendments Act (ADAAA) in 2009, commentators have been predicting a rise in disability claims. Statistics recently released by the Equal Employment Opportunity Commission (EEOC) show that those predictions have come true. In fiscal year 2011, the number of disability discrimination charges filed under the Americans with Disabilities Act (ADA) rose for the second year, totaling more than one quarter of all charges filed.

Through its enforcement, mediation, and litigation programs, the EEOC won $103.4 million for employees and applicants claiming disability discrimination in 2011, compared to $76.1 million in 2010. That represents a nearly 36 percent increase, the highest increase among all types of charges. And what are the impairments most frequently cited as a “disability” under the ADA? Number one is back impairments (no surprise there), followed by orthopedic impairments, depression, anxiety disorder, and diabetes. read more…

EEOC Declares that Title VII Protects Transgender Employees

By Heather Knox

The Equal Employment Opportunity Commission (EEOC), the federal agency that interprets and enforces employment discrimination laws, recently considered whether Title VII of the Civil Rights Act of 1964 protects transgender employees from workplace discrimination. The case involved an employee who claimed she wasn’t hired by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to work at a crime lab, despite being otherwise qualified for the job, after she revealed that she was in the process of transitioning from male to female. Let’s take a closer look at the case.


Mia Macy, a transgender woman, was working as a police detective in Arizona when she decided to relocate to California in December 2010 for family reasons. At the time, she hadn’t yet transitioned from male to female and was still known as a man. When she learned of an open position in an ATF crime lab for which she was qualified, she applied for the job. She was interviewed over the telephone, and the discussion covered her experience, credentials, salary, and benefits. The agency told her the job would be hers so long as she passed the required background check. read more…

Veterans Soldiering On Through Tough Job Market

May 20, 2012 - by: Diversity Insight 0 COMMENTS

By Tammy Binford

The recession has been discouraging to job seekers of all stripes – those with advanced degrees as well as those without higher education, those in specialized fields and those looking for just any kind of work. Certainly job seekers transitioning out of the military aren’t immune to the difficulties posed by the tough job market. This article will examine why some veterans are having trouble transitioning from the military to employment and what employers can do to help.

Not Just a Statistic

A report from the U.S. Bureau of Labor Statistics (BLS) issued in March shows how recent veterans are faring in their quest to find employment. Veterans who served on active duty any time since September 2001 – a group labeled Gulf War-era II veterans – saw an unemployment rate of 12.1 percent for the year in 2011. That compares to an 8.3 percent 2011 unemployment rate for all veterans (Gulf War-era II vets as well as vets from other time periods). The overall U.S. jobless rate in 2011 was 8.9 percent, according to another BLS report.

A telling statistic in the March BLS report illustrates the difficulty the youngest veterans are having finding work outside the military. Young male veterans (those ages 18-24) who served during Gulf War era II had an unemployment rate of 29.1 percent in 2011, much higher than the 17.6 percent jobless rate of young male nonveterans in 2011. read more…

Clash of the Sash: Miss Universe and Transgender Bias

May 20, 2012 - by: Diversity Insight 1 COMMENTS

By Kylie Crawford TenBrook

Recently, Jenna Talackova was disqualified from the Miss Universe contest for allegedly lying about her gender on her entry form. Talackova, who was born with male genitalia but underwent a sex-change operation, indicated on the form that she is female. (Seriously, if an operation can make someone look like that, I’m in.) Amid much media criticism, Donald Trump, who owns the Miss Universe Organization, changed his tune and announced that the organization was changing its policy from requiring contestants to be “naturally born women.” Now, the contest includes all women.

This story highlights the recent attention given to discrimination against transgendered and transsexual individuals. Because discrimination is a workplace concern, it’s important to understand the extent to which transgendered and transsexual individuals are protected in the workplace. read more…

Thou Shalt Not Unreasonably Question Employees’ Religious Beliefs

May 20, 2012 - by: Diversity Insight 0 COMMENTS

By Mark G. Jeffries

Q: If an employee asks for time off based on her religious beliefs, can I legally question her about her religion (e.g., what her religion is and why she needs time off)?

A: Yes, you may question an employee about her religious beliefs if you have an objective basis for questioning either the religious nature or the sincerity of the belief or practice. Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employees’ sincerely held religious beliefs unless the accommodation would cause an undue hardship on business operations. read more…

Categories: Q&A


Pepsi Pays $3M to Settle Race Case Based on Background Check Policy

May 20, 2012 - by: Diversity Insight 0 COMMENTS

By Jennifer Melton

On January 11, 2012, Pepsi Beverages Company agreed to pay more than $3 million to resolve race discrimination claims filed in 2006 by more than 300 African American job applicants. The claims alleged that the company’s criminal background check policy (1) disproportionately excluded African Americans from employment with Pepsi and (2) violated federal and state legal limits established by Title VII of the Civil Rights Act of 1964. The settlement sends a clear message to other employers: Be more proactive and conduct frequent and comprehensive reviews of criminal background check policies to minimize the likelihood of similar sanctions and fines by the Equal Employment Opportunity Commission (EEOC).

Legal Ramifications

Following an EEOC investigation, the commission ruled that Pepsi’s long- standing policy (which denied employment to job applicants who had been arrested) resulted in race discrimination. Statistics show that minorities tend to have higher arrest and conviction rates than whites. The investigation revealed that in this case, none of the applicants had been convicted of a crime and therefore should have been considered suitable for employment (provided they met the job requirements and qualifications). read more…

Parents of Special Needs Kids Finding Support at Work

April 15, 2012 - by: Diversity Insight 0 COMMENTS

Last month, Diversity Insight writer Tammy Binford explored the legal issues involved when employees must juggle work and special-needs parenting collide. Now, she looks at how employers can help their employees balance work and their obligations as parents of special needs children.

By Tammy Binford

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Religion in the Workplace: A Delicate Balance

April 15, 2012 - by: Diversity Insight 0 COMMENTS

By Keith Moorman

With the steady flow of news putting religious issues in the spotlight, it’s a good time to review the requirements regarding religion in the workplace.

Religion and Private Employers

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Political Discrimination: The Elephant in the Room?

April 15, 2012 - by: Diversity Insight 1 COMMENTS

By Jeremy M. Brenner

The First Amendment to the U.S. Constitution prohibits a state employer such as a university from discriminating against applicants and current employees based on their political beliefs or affiliations except in very limited instances. If an applicant or employee can demonstrate that her political views or associations caused a state employer to make an adverse employment decision (e.g., refusal to hire, termination, or failure to promote), the employer must prove it would have taken the same action regardless of the individual’s political views. In a recent decision, the Eighth U.S. Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) explained what constitutes unlawful “political discrimination” and how state employers can prevent it, particularly in a politically charged election year.


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