by Steven Collis

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…

by Judith E. Kramer

On January 28, a federal court ruled in favor of Kaplan Higher Learning Education Corp. and Kaplan University in a lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The EEOC had alleged that Kaplan’s use of credit history reports in making hiring decisions violated certain provisions of Title VII of the Civil Rights Act of 1964 because the practice has a disparate impact on black applicants.

Background

The defendant in this case was a group of educational institutions. As the court noted, educational institutions operate in a highly regulated industry. The U.S. Department of Education (DOE) provides financial aid to many students enrolled at Kaplan University and Kaplan Higher Learning Education and requires its participants to have in place quality controls that limit access to student and parent information. read more…

by Mark Schickman

Statistics from the Equal Employment Opportunity Commission show that charges of discrimination based on religion and national origin are the fastest growing categories in the past decade. Of course, that coincides with the aftermath of 9/11 and, rational or not, American anger and suspicions over Middle Eastern Arab communities. This shift in public mood creates a problem for HR professionals, whose job it is to ensure a workplace free from discrimination and harassment―a prejudice-free island in an ocean littered with group hatred. That’s no easy job, as United Parcel Service (UPS) was reminded recently. read more…

by Brinton Wilkins

Humans are unique in their use of words. With them, we explain the world around us, share our thoughts and feelings, teach, and define ourselves. Therefore, it should be no surprise that words also can injure. Trying to excuse words by saying “I didn’t mean to hurt anybody” or “Everyone says that” usually rings hollow. In the English language, there are few words more opprobrious and hateful than the “n” word. Although segments of pop culture seem to have a conflicted, contradictory, and self-destructive relationship with that word, it should be clear to employers that the word has no place in a modern workplace. Unfortunately, one employer learned that lesson the hard way. read more…

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…

By Carolyn A. Wade

Society’s standards (or lack thereof) regarding clothing and grooming have certainly changed over the last 50 years. Taking a trip on an airplane used to mean “dressing up” and wearing the kind of clothes you would wear to church ― a suit and tie or a dress and heels. Now people fly in sweatpants and sneakers and regularly wear jeans to church. Some employees would happily wear nothing but sweatpants or jeans to work if their employers would let them.

For some employees, personal appearance ― including hairstyle, jewelry, tattoos, piercings, and head coverings as well as clothing ― is a form of self-expression. Religious mandates can also affect an employee’s appearance. Employers are confronted not only with excessively casual appearance but also with other extremes: looks that are too suggestive, too political, too dangerous, too bizarre. What’s “slightly sexy” to one person can be “downright vulgar” to another. So what’s an employer to do? How far can you go in regulating your employees’ appearance?

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Under Title VII of the Civil Rights Act of 1964, you are prohibited from discriminating against individuals based on several protected classes, including race and national origin. In the following case, an Arkansas Children’s Hospital (ACH) physician claimed that his ethnicity and national origin prompted the revocation of his hospital privileges. Read on to learn how the Eighth U.S. Circuit Court of Appeals (which includes Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) handled his claims.

“Sham” Peer Review Leads to Federal Court Case

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Many employers have had more than their fair share of discrimination allegations. Continental Airlines was accused of race, color, national origin, religious, and disability discrimination in one lawsuit. Let’s take a look at how it did more than its fair share of trying to work with the employee before eventually terminating him.

Losing Control

Meet Alfred Toronka, a black airline employee from Sierra Leone and a Seventh-day Adventist who also expressed a belief in voodoo. He was hired by Continental Airlines in 1997 to work as a material specialist in its technical operations department; driving was one of his essential job functions. He was terminated in 2008. read more…