Yes, if the check is too broad to be truly relevant to the job opening and disparately impacts a particular race of job applicants. If employers do not carefully draft and review their policies on criminal background checks for job applicants, they may run afoul of Title VII’s prohibition against actions that discriminate against persons on the basis of race.
Pepsi recently learned this lesson – agreeing to pay $3.13 million and to provide job offers and training after the EEOC investigated Pepsi’s policy on criminal background checks and determined that the policy disproportionately excluded African American applicants from permanent employment, in violation of Title VII. Under this policy, Pepsi had not hired applicants who were arrested or convicted of minor offenses.
While criminal background checks are absolutely necessary for certain employers and advisable for even more, policies for those checks should be drafted and reviewed so as to avoid illegal discrimination.
Davenport Evans can assist you in drafting or reviewing a criminal background check policy. Contact one of our Labor and Employment Law attorneys at 605-336-2880 or info@dehs.com.