The White House is urging businesses to take the Fair Chance Business Pledge and commit to providing individuals with criminal records “a fair chance to participate in the American economy.” The idea behind the initiative is that individuals with a criminal history have trouble finding employment, and many communities are hurt because of the lack of gainfully employed residents and good role models. Because nearly one in three adults—almost 70 million Americans—has a criminal record, a large number of people and communities are affected when individuals with a criminal history cannot find employment.
More than 100 organizations have taken the pledge, including American Airlines, Coca-Cola, Facebook, Google, the Hershey Company, Johns Hopkins Hospital and Health System, Koch Industries, PepsiCo, Prudential, and Starbucks, to name just a few. So if your company is interested in taking the pledge, what considerations should you think through?
The hiring process can be challenging for employers and jobseekers alike. Employers struggle to match their needs to the skills and experience of applicants. Jobseekers struggle to make employers understand why they’re right for the job. That dual struggle gets even more complicated when a criminal conviction is added to the picture.
According to figures in a report from the Council of State Governments Justice Center, some nine million people are released from jail every year. In 2010, 708,677 sentenced prisoners were released from state and federal prisons, and 4.9 million individuals were on probation or parole. Many of those people will have trouble finding employment.
In its first class action lawsuit challenging an employer’s use of criminal records, the Equal Employment Opportunity Commission (EEOC) ended up dropping its case against PeopleMark and getting socked with $750,000 in sanctions. Recently, the EEOC suffered another stinging loss when a federal court dismissed its discrimination case against Kaplan Higher Education Corporation (which was discussed in a previous blog post, “EEOC’s use of ‘race raters’ against Kaplan University gets failing grade”) based on an unsound analysis by the commission’s expert witness. With the same expert providing statistical evidence in another case, could the agency strike out in a third background check class action lawsuit?
Over the past few years, the EEOC has aggressively challenged the use of credit reports and criminal history checks in hiring decisions, alleging that use of the information results in a discriminatory impact on candidates in protected groups. In 2012, the commission successfully negotiated a $3.13 million prelawsuit settlement of a race discrimination charge against Pepsi in which the soda giant’s criminal background check policy was called into question for allegedly discriminating against African Americans. However, the agency has been less successful pursuing similar cases in court, mainly because of its struggle to proffer reliable evidence of discriminatory impact. Despite the EEOC’s mixed results, the recent settlements and case filings indicate that the use of credit and criminal history checks in the hiring process is a hot topic. read more…
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).
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…
Employers are understandably hesitant to hire an applicant with a criminal history. There are good reasons to exercise caution ― employers face considerable exposure for workplace violence committed by employees.
The U.S. Department of Labor‘s Occupational Safety and Health Administration regularly cites employers that have failed to enact adequate safeguards against workplace violence. Employers also may be sued in private lawsuits based on negligent hiring or retention of employees who commit workplace violence.