It is no secret that many employers commonly ask about criminal background information during employment application processes, and doing so is not in itself illegal. The effect of screening out those with criminal or even arrest records, however, has been shown to be disproportionately discriminatory toward African-Americans and Latinos. Under Title VII of the Civil Rights Act of 1964, it is unlawful to exclude individuals from employment because of their race or national origin. By requesting criminal background information, employers are at risk of unlawfully discriminating against minorities, even if that is not their intention.

Two recent settlements highlight the widespread use of these practices and the number of job applicants affected by them. According to an Equal Employment Opportunity Commission press release, Pepsi Co. recently entered into a settlement after an EEOC investigation into Pepsi’s criminal background check policy preventing more than 300 African-Americans from receiving employment. Pepsi was alleged to have had a policy against hiring anyone who had merely been arrested pending prosecution but not convicted, as well as those who were arrested for or convicted of minor offenses. According to the EEOC press release, the settlement requires Pepsi to pay $3.13 million, provide employment opportunities to victims of the policy, conduct Title VII training and provide the EEOC with regular reports.

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