The U.S. Equal Employment Opportunity Commission (EEOC) has begun filing lawsuits against employers for their use of criminal background checks. Last month, the EEOC filed a lawsuit against Dollar General and a BMW manufacturing plant in South Carolina over their use of criminal background checks that resulted in employees being fired and job applicants being screened out for employment.
The two lawsuits are the first since the agency issued its revised Enforcement Guidance in April 2012 updating its prior position that using such records as an absolute bar for hiring a potential candidate (or making any other employment decision) could limit the employment opportunities of some protected groups and, thus violate Title VII.
In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. Since 1994, BMW has had a criminal conviction policy that denies facility access to BMW employees and employees of contractors with certain criminal convictions. BMW’s policy has no time limit with regard to convictions. The commission claims BMW’s policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.
In the Dollar General case, the Chicago office of the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected African-American applicants. The EEOC alleges that one of the applicants was given a conditional employment offer even though she disclosed a six-year-old conviction for possession of marijuana. However, the commission claims her job offer was revoked because Dollar General’s practice was to disqualify an applicant who had this type of conviction within the past ten years. According to the EEOC, the other applicant was fired by Dollar General despite the fact that the conviction records check report about her was wrong. The commission claims that even after she advised Dollar General of the mistake in the report, the company did not reverse its decision to fire her.
The EEOC strongly encourages (although does not require) employers to go through an “individualized assessment” to those applicants screened out by the criminal background check process to determine if the criminal record truly should have an impact on the individual’s employment opportunity.