No evidence of intentional discrimination was found and Pepsi has worked with the EEOC to revise its background check process.  The EEOC has taken an aggressive stance on criminal background checks and criminal history checks that disadvantage African Americans and Hispanics in the hiring process.

Stephen Saltzburg, a professor at George Washington Law School in Washington, told the commission the “collateral consequences of criminal records for employment opportunities represent one of the more challenging issues facing our justice system and our nation.” Because concerns over making a wrong hiring decisions are so great, he said, companies frequently deploy a broad response that results in “unjustified and discriminatory barriers to persons whose criminal records are unrelated to the employment at issue and whose records maintained by government databases are inaccurate or incomplete.” We see the same broad response in the use of credit history checks.

Employer groups, asked EEOC to craft any new guidelines carefully and 60 employer associations sent the EEOC a letter that said “attempts to ease the unemployment situation or re-entry desires should not come at the expense of keeping people and businesses safe from physical or financial harm.”

David French, senior vice president for government relations at the Washington-based National Retail Federation, stressed the need for employers to be able to ask about criminal backgrounds on employment applications. “The retail industry wants to keep our workplaces safe,” he said. “Removing a first line of defense, specifically the criminal-background-history question on an employment application, leaves retailers, shoppers and the entire business community at a disadvantage.”

Stephanie Hughes Kernick, executive director of the National Association of Professional Background Screeners in Morrisville, N.C. says “companies have the responsibility to create a safe working environment, yet their hands would be tied because one of the more important tools for doing so would be taken away from them.”

We at LLSG agree with any approach that limits the use of criminal (and credit history) checks in employment screening and forces employers to tailor their policies. Employers should be cautious of blanket policies that exclude applicants based on their criminal history (or credit score.) Where those policies exist, an employer should be ready to articulate how the policy is consistent with business necessity or required by law. Narrowly tailored policies are more likely to survive legal scrutiny than across the board bans. You can read what we’ve said on the issue previously and find a summary of the available research here.

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Credit: Human Resource Executive Online

The NAPBS, a non-profit trade association representing the interests of companies offering employment background screening, believes the July 26th meeting “could be a critical step in the Commission’s adoption of policies that could significantly impact how employers use criminal background checks for employment purposes.”

The full EEOC meeting will include all five Commissioners and although a formal agenda has not yet been released, the NAPBS expects that multiple panels will include academics, lawyers, government officials, and people denied employment due to their criminal histories.

The EEOC currently has guidelines on how employers may use criminal records that makes the use of a blanket “no hire” policy that excludes job applicants with a criminal history unlawful under Title VII of the Civil Rights Act of 1964 since it discriminates against minority groups with higher rates of criminal convictions. Employers must also show that they considered the following three factors to determine whether a decision not to hire an applicant due to a criminal conviction was justified by business necessity; the nature and gravity of the offense or offenses, the time that has passed since the conviction or completion of the sentence, and the nature of the job held or sought.

Thomas has written the book with human resources professionals, in-house counsel and employment lawyers in mind, and they are introduced to the statistical analysis of adverse impact in a non-technical manner. Various tools for examining disparate impact are presented and concrete examples and simple calculations demonstrate how these statistical tools can be applied to questions of adverse impact in hiring, promotion, and termination decisions.

Traditional areas of vulnerability to adverse impact are discussed. But Thomas throws in some emerging areas with potential for adverse impact, such as the use of social media in recruiting and current employment status as a candidate screening tool – both highly topical right now. The underlying sources of vulnerability are explored and pending legislation is discussed. The importance of litigation avoidance is stressed, and suggestions for minimizing the risk of employment litigation with proactive statistical analysis are provided.

A great book for any HR professional looking to increase their knowledge of adverse impact and perfect for in-house counsel seeking to help their organization avoid employment discrimination litigation.

Researchers started the study back in 1979 and looked at 12,000 participants in a cross section of the American workplace, taking into consideration race, age, gender and education when calculating their results.

Marilyn Wann calls herself a “fat activist” and said that this study highlights the fact that there is weight discrimination happening in the workplace. She says that the study shows that women are still being valued for their appearance rather than their accomplishments.

Strangely, and annoyingly, the same study showed the opposite for men. Overweight men earn on average $8K more than their underweight male colleagues.

Are any hiring managers living in 2011?

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Photo: By Vitalogia on Flickr under Creative Commons License

His research shows that our character and our morals, aren’t inherently stable and are in a state of constant flux depending on the environment around us. That is, we behave within context.

This reminded me of a legal case that our team worked on some time ago. It was a case in which an organization was accused of ‘stealing time’ from employees. The managers of the organization were not bad people, in fact, they were successful performers and dedicated members of the company team. They all had different personality traits and ethics, but they all behaved in the same way at work. Why? Because they were working within a highly restrictive system that created incentives to behave in certain ways and they only had one variable that they could control.

What does this mean for employers?

The take away message from DeSteno’s book is not that people have no inherent character. It’s that character is not etched in stone, its flexible based on context. People behave in different ways when presented with different options and environments.

For employers this means being aware of the types of human resource systems you require people to work within. What behaviors do you incentivize in your pay for performance and bonus systems? What variables do managers control and what to what extent?

The above case cost this particular organization a great deal of money across a number of States. None of the managers had poor character or ethics, they simply acted within the confines of a system in their own best interest by using the one factor they could control.

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Photo: northeastern.edu