If Your Pepsi Starts Tasting Different…

From Roger Clegg, president and general counsel of the Center for Equal Opportunity, posted with permission:

EEOC Charges Pepsi with (Gasp!) Using Arrest and Conviction Records to Screen Hires

In a press release on Wednesday, the Obama administration announced that Pepsi “has agreed to pay $3.13 million and provide job offers and training”after a U.S. Equal Employment Opportunity Commission “investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.” The press release says that, under that policy, “job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense,” and that the policy “also denied employment to applicants from [sic] employment who had been arrested or convicted of certain minor offenses.” [link: http://www.eeoc.gov/eeoc/newsroom/release/1-11-12a.cfm ]

This appears to be a straight “disparate impact” claim. That is, there is no claim that Pepsi’s policy on its face treated applicants differently on account of race, or was designed to exclude blacks, or was not evenhandedly applied — just that blacks were, statistically, more likely to be excluded by the policy and that Pepsi, in the opinion of the EEOC, did not have a good enough reason for thinking that people without criminal records would be better employees than people with criminal records.

The administration has repeatedly promised to ramp up its use of disparate-impact claims (not only in employment, but in other areas of civil-rights enforcement — like mortgage lending, school discipline, and voter ID requirements — and even in environmental law), and in this area the Obama administration is as good as its word.