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EEOC Focusing on Employers Using Criminal Background Checks

by Martin Salcedo, Esq. - The Human Equation on 6/18/2013
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In a previous article we discussed the Equal Employment Opportunity Commission’s (EEOC) position on the use of arrest and conviction records in the employment context. According to the EEOC, Title VII of the Civil Rights Act (Title VII) prohibits the use of arrest and conviction records in a manner that discriminates on the basis of race, color, national origin, religion, or sex. The EEOC recently reaffirmed its position by filing two lawsuits involving the use of criminal background records.

BMW Manufacturing Co.

The EEOC claims that BMW’s criminal conviction policy, which disproportionately screened out African Americans, is not job related and consistent with business necessity. The lawsuit alleges that BMW’s policy is a blanket exclusion that does not provide for an individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the workers’ respective positions.

According to the EEOC, a BMW contractor hired workers in accordance with its own criminal conviction policy rather than BMW’s policy. When the contractor was replaced, workers were required to undergo new criminal background checks pursuant to BMW’s policy. As a result, some workers were told they no longer met the criteria for working at the BMW facility and were fired. Many of them had worked at the BMW facility for years. 

Dollar General

The EEOC alleges that Dollar General’s policy of conditioning all job offers on criminal background checks disproportionately screens out African Americans. According to the EEOC, an applicant was given a conditional employment offer even though she had disclosed a six-year-old conviction for possession of a controlled substance. The job offer was allegedly revoked because Dollar General's practice was to use her type of conviction as a disqualification factor for 10 years.

Another employee was allegedly fired because her criminal report mistakenly showed a felony conviction. According to the EEOC, Dollar General stood by its firing even though the employee advised the store manager that she had not been convicted of a felony.

Unlike disparate treatment discrimination, which involves treating people with the same criminal records differently because of a protected characteristic (race, national origin, etc.), these two cases allege disparate impact discrimination. This type of discrimination occurs when a neutral policy or practice disproportionately screens out a group that is protected by Title VII.

According to the EEOC, there is disparate impact liability when an employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group, and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity.

"Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions,” noted EEOC Chair Jacqueline Berrien, “the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII."

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The Human Equation prepares all risk management and insurance content with the professional guidance of Setnor Byer Insurance and Risk.

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