Discrimination Lawsuits in the News Related to Background Checks

Social Media Passwords and Employment There have been cases, during background checks, of Employers asking for passwords to social media websites during interviews, this has been strictly scrutinized because it can lead to protected information being revealed, such as religious affiliations, family size, family obligations, and more. By asking for access to this information Employers are opening themselves up to discrimination lawsuits. Following an incident where a prison guard was required to provide his Facebook username and password during a reentry interview Maryland enacted legislation making it illegal for Employers to ask for social media passwords of job applicants and employees. Many other states are moving towards similar legislation, which can be tracked through the following link: http://www.ncsl.org/research/telecommunications-and-information-technology/employer-access-to-social-media-passwords-2013.aspx

BMW pays $1.6 million Settlement for Background Check Policy Associated with Race

In 2015 BMW agreed to pay a $1.6 million settlement and offer jobs to African American applicants to resolve a federal lawsuit and charges based on the company’s previous hiring guidelines that governed their use of criminal background checks. The EEOC sued BMW alleging that the criminal conviction background check policy lead to the “disproportionate exclusion” of African American applicants from job opportunities, and violated Title VII of the Civil Rights Act of 1964. This instance highlights the importance of creating a criminal background check policy that is both job related and consistent with business necessity. Allowing for variation in the policy between different job titles within the Employer’s company can help to show that detail put into the policy by considering differing job duties when looking at criminal background checks. Pepsi pays $3.13 million for Background Checks Policy

In 2012 Pepsi Beverages Company agreed, during the post-investigation conciliation process with the EEOC, to pay $3.13 million and provide training and job offers to those who were subjected to their prior criminal background check policy to resolve an EEOC investigation that alleged racial discrimination in Pepsi’s hiring process. The EEOC conducted an investigation and found that more than 300 African Americans were adversely impacted when Pepsi applied their criminal background check policy. Under their former policy, which lead to this investigation and subsequent $3.13 million payment, job applicants who had been arrested but not convicted were not hired for permanent jobs. The former policy also denied employment to applicants who had been arrested or convicted of certain minor offenses. Using arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964 when those arrest and convictions records are not relevant for the specific job.

J.B. Hunt Transportation Settles Over Improper use of Unrelated Criminal Conviction

In 2013 J.B. Hunt Transportation entered into a settlement after the EEOC brought a race discrimination charge against the employer. The EEOC alleged that the transportation company engaged in unlawful racial discrimination by rejecting an African American truck driver applicant because of a prior criminal conviction that was unrelated to the prospective job duties. This case highlights the importance of determining which convictions will be relevant to specific job duties to prevent claims of discrimination.