A recent case in which Pepsi was fined $3.13 million by the Equal Opportunity Commission (EEOC) puts criminal background screening under the microscope. The company was charged with discrimination against African-Americans because Pepsi's overly broad background screening policy eliminated minorities whose minor offenses had no bearing on the job for which they were applying.

Nextep highly recommends the use of background screening when hiring new employees, not only to verify credentials, but also to ensure the safety of other employees and prevent negligent hiring. When denying employment to someone based on his or her criminal history, however, companies must be careful that it is not creating disparate impact on protected groups.

The Equal Employment Opportunity Commission (EEOC) states, "Excluding individuals from employment because they have conviction records may disproportionately affect persons covered under EEO laws, including African-Americans and Hispanics, thereby creating a disparate impact." (EEOC Opinion Letter, 6/17/2011) Policies that create disparate impact, even unintentionally, could potentially violate the protection afforded under Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin.

When denying employment based on a criminal history, the employer must be able to show how the criminal history would have impacted the job at hand.

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