EEOC files two lawsuits for discriminatory background checks
 July 30, 2013

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued updated enforcement guidance on employer use of arrest and conviction records. The Commission recommends that employers not ask applicants about past criminal convictions and encourage employers to give job applicants an opportunity to explain past criminal misconduct before they are rejected. The EEOC emphasizes that background checks have a discriminatory impact on minorities and can violate Title VII of the Civil Rights Act, even if the background check policy applies to all applicants regardless of race. A neutral policy that disproportionately affects a protected group (such as race or ethnicity) can lead to a "disparate impact" discrimination enforcement action.

Within the last month, the EEOC filed federal lawsuits against Dollar General and a BMW manufacturing plant in South Carolina based on this guidance concerning use of criminal background checks. Both lawsuits are brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation. According to the Commission, Dollar General has implemented and utilized a criminal background policy that resulted in employees being fired and job candidates being screened out for employment in a way that disproportionately affected minorities. The lawsuit alleges Dollar General rejected two African-American applicants without regard to the specific circumstances of their criminal records. The first had previously worked for another discount retailer for four years without incident, but also had a six-year-old conviction for possession of a controlled substance. second did not have a felony conviction at all; the records check was simply incorrect.

The EEOC alleges that BMW disproportionately screened applicants using a background check policy that was not job-related or consistent with business necessity. In other words, the convictions that disqualified applicants were not closely related to their ability to perform the job. According to the Commission, BMW's “blanket” policy excluded all applicants, regardless of qualifications, based on several types of crimes, without taking into account the distinction between felonies and misdemeanors or the time elapsed since the conviction. For example, one African-American applicant was denied employment based solely on a 1990 misdemeanor conviction that was punished by a $137 fine.

The two lawsuits are the first to be filed since the EEOC issued its revised guidance under Title VII. In a statement, the Commission explained that “overcoming barriers to employment is one of our strategic enforcement priorities, (and) we hope that these lawsuits will further educate the public and the employer community on the appropriate use of conviction records.” Both lawsuits are examples of the EEOC’s aggressive pursuit of its strategic enforcement priorities. The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records. Among other issues, the Reentry Council is working to reduce barriers to employment, so that people with past criminal involvement - after they have been held accountable and paid their dues - can compete for appropriate work opportunities in order to support themselves and their families, pay their taxes, and contribute to the economy.

Prevention Strategies: All post-conditional offer, pre-employment processes must be legally sound. Review your organization’s recruiting and hiring procedures to be sure they are job related and consistent with business necessity. This includes background investigations, credit checks, pre-placement drug screening and medical examinations for employees with safety sensitive jobs. Exercise your right to conduct a careful pre-employment evaluation, but be mindful of the prohibitions against unlawful screening of applicants based on protected characteristics.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator, " who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Manag- ers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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