In our last post we discussed the basics of a "failure to hire" claim based on racial discrimination and the recent racial discrimination lawsuit settlement involving Pepsi Beverages Co. The hiring policy which formed the basis of the settlement involved a hiring ban on individuals who had any arrest history regardless of whether they had been convicted or not. The EEOC argued that the no-arrestee policy disproportionately excluded large numbers of black applicants from being hired at Pepsi bottling plants.

Pepsi stressed that the EEOC did not find any intentional discriminatory practices in the company's hiring and that it applied its criminal background check uniformly to all of its applicants regardless of race. It should be noted that it is not illegal to bar people from being hired based on their arrest history but that the EEOC maintains that arrest records tend to limit the employment opportunities of ethnic or racial minorities.

The EEOC believes that employers should consider the gravity of an offense, the date of the arrest, and the relevance of the arrest to the nature of the job at hand. Pepsi in return has expressed a "willingness to re-examine its policy and modify it to ensure that unwarranted roadblocks to employment are removed."

"We are committed to promoting diversity and inclusion and we have been widely recognized for our efforts for decades," said a Pepsi Beverages spokesman. "After the issue was raised to (Pepsi) in 2006, we worked in cooperation with the EEOC to revise our criminal background check process to further advance our efforts to create a workplace that is as diverse and inclusive as possible."

Source: Star Tribune, "Bottler to pay $3.1M in racial bias case," Dee DePass, Jan. 11, 2012