January 18, 2012

Pepsi popped for $3.1M in background check case

Posted in Application Process, Color, Race tagged , , , , , , at 12:24 pm by Tom Jacobson

Background checks are very important tools during the hiring process, but as Pepsi Beverages (formerly Pepsi Bottling Group) recently learned, asking the wrong questions can be discriminatory — and expensive.  In a January 11, 2012 press release the EEOC reported that Pepsi has agreed to pay $3.13 million to settle a case challenging its former background checking policy.

At issue was Pepsi’s policy which rejected applicants who had been arrested and were pending prosecution.  The policy also denied employment to applicants who had been arrested or convicted of certain minor offenses.  According to the EEOC, this policy disproportionately excluded black applicants from permanent employment and that it therefore violated Title VII of the Civil Rights Act of 1964.

In addition to the monetary settlement, Pepsi also changed is background checking policy, and it agreed to offer employment opportunities to victims of its former policy, supply the EEOC with regular reports on its hiring practices, and conduct Title VII training for its hiring personnel and managers.

Although using arrest and conviction records to screen applicants is not per se illegal under Title VII, it can be when it is not relevant to the job. Therefore, employers are urged to use them cautiously.

According to Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office, “When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII.” Schmid added, “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

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July 7, 2011

Mean guys finish last: temperament as a job qualification

Posted in Color, Discrimination, Interviewing, National Origin, Race tagged , , , , , , , , , , , at 9:10 am by Tom Jacobson

Bad temperament during the application process can be used as the reason to reject a candidate, according to the United States Court of Appeals for the Eighth Circuit.

Last August I commented the case of Amini v. City of Minneapolis.  The case centers around Hamid Amini, who was a police officer candidate at the Minneapolis Police Department.  The hiring process at the MPD included oral and written examinations, fitness and psychological testing, background checks, and interviews.  During an interview, Amini became agitated, argumentative, frustrated, and demanding.   Because of its concerns over Amini’s temperament, the city did not hire him.

Amini sued the city under Title VII of the Civil Rights Act of 1964, claiming that he was discriminated against on the basis of his national origin, race, and color.  He also claimed race discrimination under 42 U.S.C. Section 1981.

Last summer, the United States District Court for the District of Minnesota, Judge Donovan W. Frank presiding,  dismissed Amini’s lawsuit.  Judge Frank held that while Amini may have been minimally qualified for the job, the city’s reason for rejecting him (his apparent bad temperament) was a legitimate non-discriminatory reason.  Judge Frank also rejected Amini’s argument that the city’s reason was a pretext for discrimination.

Amini appealed his case to the Eighth Circuit Court of Appeals, and in a July 5, 2011 decision authored by Circuit Judge Roger Wollman, the appellate court affirmed Judge Frank’s decision.

While the Amini case reinforces the principle that an employee’s or applicant’s temperament can be considered when making decisions about that person’s employment, personality traits should be considered with great caution.  Such traits tend to be subjective and are difficult to prove.  Indeed, Judge Wollman cautioned against the use of subjective criteria because they can be easily fabricated.  And, what might be an important personality trait in one job might be irrelevant in another.  Without solid evidence, relying on temperament may not be a good defense to a discrimination claim.  However, in situations where candidates’ objective qualifications are comparable, the mere use of subjective criteria, such as temperament, does not create an inference of discrimination.

For more information about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

January 12, 2011

EEOC reports “unprecedented” number of charges in 2010

Posted in Discrimination, Race, Retaliation tagged , , , , at 10:53 am by Tom Jacobson

The Equal Employment Opportunity Commission has released its discrimination charge statistics for fiscal year 2010. Its report shows that private sector job bias claims reached the unprecedented level of 99,992 charges for the year ending September 30, 2010. The EEOC also reports that “Through its combined enforcement, mediation and litigation programs, the EEOC secured more than $404 million in monetary benefits from employers — the highest level of monetary relief ever obtained by the Commission through the administrative process — to promote inclusive and discrimination-free workplaces. EEOC Reports Job Bias Charges Hit Record High of Nearly 100,000 in Fiscal Year 2010, http://bit.ly/gpKA4w).

Although the number of charges increased in all categories, FY 2010 was the first year in which retaliation (36,258 claims) surpassed race (35,890 claims) as the most frequently alleged violation. Also according to the EEOC, its mediation program set a record of 9,370 cases resolved through mediation (a ten percent increase).

Some analysts suggest that the surge in job bias claims has been fueled by a bad economy which motivates displaced or disgruntled employees to litigate. Dismal Job Market Fuels Job Bias Claims, http://on.today.com/gIFYoG.  Other contributing factors include the increasingly diverse workforce and the EEOC’s own efforts to spread the word about workplace discrimination. The EEOC reports that in FY 2010 it delivered its public outreach message to 250,000 people.

Regardless of the reasons for the increased number of charges, the EEOC’s statistics stand as a vivid reminder that unlawful discrimination persists in the U.S. workforce. Employers who take a pro-active approach at eliminating job-bias and taking prompt remedial action when issues arise will be in the best position to defend those claims should they arise in their workplace.

The EEOC’s FY 2010 statistics can be found at http://bit.ly/hr87vj.

If you have any questions about this post, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

August 10, 2010

Angry applicants & cranky candidates: Can temperament be a job qualification?

Posted in Color, Discrimination, Interviewing, National Origin, Race tagged , , , , , , , , , at 11:22 pm by Tom Jacobson

If an applicant who is minimally qualified for a job becomes agitated or otherwise shows bad temperament during the application process, can those personality traits be used as the reason to reject the candidate?  Consider the July 28, 2010 case of Amini v. City of Minneapolis.

Hamid Amini was a police officer candidate at the Minneapolis Police Department.  The hiring process at the MPD included oral and written examinations, fitness and psychological testing,  background checks, and interviews.  During an interview, Amini became agitated, argumentative, frustrated, and demanding.   Because of its concerns over Amini’s temperament, the City did not hire him.

Amini sued the city under Title VII of the Civil Rights Act of 1964, claiming that he was discriminated against on the basis of his national origin, race, and color.  He also claimed race discrimination under 42 U.S.C. Section 1981.

The United States District Court for the District of Minnesota, Judge Donovan W. Frank presiding,  dismissed Amini’s lawsuit.  Judge Frank held that while Amini may have been minimally qualified for the job, the city’s reason for rejecting him (his apparent bad temperament) was a legitimate non-discriminatory reason.  Judge Frank also rejected Amini’s argument that the city’s reason was a pretext for discrimination.

While the Amini case reinforces the principle that an employee’s or applicant’s temperamant can be considered when making decisions about that person’s employment, personality traits should be considered with great caution.  Such traits tend to be subjective and are difficult to prove.  And, what might be an important personality trait in one job might be irrelevant in another.  Without solid evidence, relying on temperament may not be a good defense to a discrimination claim.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

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