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EEOC Sues Employers Over Criminal Background Checks
06/19/2013

Last year the EEOC issued Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decision Under Title VII of the Civil Rights Act of 1964. As explained in the Guidance, an employer's use of an individual's criminal history in making employment decisions may, in some instances, violate prohibitions against employment discrimination, particularly with regard to race and national origin. This can occur when an employer's neutral policy disproportionately impacts persons of a particular race or national origin, and the policy is not job-related and consistent with business necessity. Last week the EEOC put its money where its mouth is by suing two employers, BMW and Dollar General, for their use of criminal background checks.     

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. The EEOC alleges that after BMW ended its contract with UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at a manufacturing facility, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse.  As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the criteria for working at the BMW facility and were subsequently terminated and denied rehire as employees of the new contractor, despite the fact that many of the employees had worked at the BMW facility for years, according to the EEOC.

The lawsuit against Dollar General, on behalf of two applicants, alleges that the company conditions all of its job offers on criminal background checks, which results in a disparate impact against African Americans. According to the EEOC, one applicant was given a conditional employment offer, although she had disclosed a six-year-old conviction for possession of a controlled substance.  Her application also showed that she had previously worked for another discount retailer as a cashier-stocker for four years.  Nevertheless, her job offer was allegedly revoked because Dollar General's practice was to use her type of conviction as a disqualification factor for 10 years. The other applicant was fired by Dollar General although, according to the EEOC, the conviction records check report about her was wrong, and she did not actually have the felony conviction attributed to her.  The EEOC alleges that although she advised the Dollar General store manager of the mistake in the report, the company did not reverse its decision and her firing stood.

"The Commission is committed to using public education and informal resolution to address discriminatory hiring practices," said David Lopez, EEOC General Counsel.  "When these methods are unsuccessful, the Commission will, if necessary, seek redress from the federal courts and ensure equal opportunity for all.  This is the latest in a series of systemic cases the Commission has filed to challenge unlawful hiring practices." In other words, the EEOC uses a carrot and stick approach. And BMW and Dollar General are now getting the stick.

 

 


Editors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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