The Equal Employment Opportunity Commission (EEOC) continues to crack down on allegedly discriminatory employer policies and practices involving criminal background checks.
On June 11, 2013, the EEOC filed two separate lawsuits in federal court against Dollar General and BMW, alleging that the employers’ use of criminal background checks to screen job applicants disproportionately excluded African Americans from employment in violation of Title VII of the Civil Rights Act of 1964. The agency has long warned that criminal record exclusions have a disparate impact on race and national origin, and that basing employment decisions on these records may violate the law if not job-related and consistent with business necessity.
According to the EEOC's complaint, the BMW policy prohibits any employee with a prior criminal conviction from accessing company facilities, without regard to the age of the conviction, the nature of the underlying crime, or its relation to the position involved. When BMW hired a new logistics contractor at its assembly plant in Spartanburg, South Carolina, it required all existing employees to reapply with the new contractor, and ordered the contractor to run renewed background checks in compliance with BMW policy.
The complaint alleges that the renewed checks uncovered conviction histories for existing employees, including some who had been working at the facility for as long as 14 years, and that these employees were informed they no longer met BMW’s employment criteria and were terminated and refused rehire. Though African Americans made up only 55 percent of plant employees, they constituted 80 percent of those terminated due to the renewed screening.
The Dollar General complaint asserts that the employer's policy conditions all job offers on the results of a criminal background check. Two applicants filed EEOC charges against the company, alleging that they were unlawfully denied employment as a result.
Dollar General granted the first applicant a conditional employment offer even after she had disclosed a six-year-old conviction for possession of a controlled substance. The complaint goes on to allege that Dollar General revoked the offer upon receiving the results of her background check, because company policy regarded her type of conviction as a bar to employment for 10 years. Dollar General similarly revoked the second applicant’s offer after a background check erroneously indicated a criminal conviction, according to the complaint, and Dollar General refused to reinstate the offer even after she advised the store manager that the report was in error.
The BMW and Dollar General suits provide a clear message that the EEOC is bringing renewed scrutiny to the use of background checks and other policies that broadly screen and disqualify applicants from employment. The EEOC has placed “eliminating barriers in recruitment and hiring” as its top priority in the most recent Strategic Enforcement Plan, stating that the agency will renew enforcement efforts with regard to pre-employment tests, background checks, date-of-birth inquiries, and other “screening tools” that restrict the application process or “channel” individuals into specific jobs due to their status in a particular group. An Enforcement Guidance issued by the EEOC in April 2012 provides employers with some direction.
Employers should be aware of the EEOC’s developing approach to employment screening tools and the other priorities listed in its Strategic Enforcement Plan, and review their policies and procedures to ensure continued compliance with the law.
Ballard Spahr’s Labor and Employment Group routinely assists employers in complying with federal and state laws governing the hiring process and other employment actions. If you have questions regarding Title VII compliance or other issues related to employment background checks, please contact Brian D. Pedrow at 215.864.8108 or firstname.lastname@example.org, the member of the Group with whom you work.
Copyright © 2013 by Ballard Spahr LLP.
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