July 8, 2013Client Alert

Criminal Background Checks and the EEOC’s Aggressive Posture Towards Them

The Equal Employment Opportunity Commission (EEOC) first issued written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions when they advised employers that their use of that information to deny employment opportunities could violate Title VII of the Civil Rights Act of 1964. In April of 2012, the EEOC published updated guidance for employers regarding the use of convictions records. The updated guidance stressed that the consideration of any conviction record should be both job-related and consistent with business necessity.

The EEOC has also taken the position that any blanket prohibitions on hiring applicants with criminal records are not in line with the EEOC guidance. Rather, the EEOC recommendation is that an employer must evaluate the nature and gravity of an offense, the time that has passed since a conviction or the completion of a sentence, and the nature of the job sought before an employer should disqualify a candidate with a conviction record. Several cases have recently made headlines in regard to the EEOC enforcing this policy guidance.

The EEOC filed lawsuits in early June against Dollar General and BMW, claiming that both companies’ use of criminal background checks disproportionately screened out African-American job applicants, thereby disparately impacting those applicants in violation of Title VII of the Civil Rights Act of 1964.

In regard to Dollar General, the EEOC claimed that the company conditions all job offers on the criminal background checks, resulting in nationwide race discrimination against African-American job applicants. There were two complaining applicants in the case, with one applicant being initially hired as a stocker and cashier in 2004, but Dollar General revoked the job offer days later due to a six-year-old felony conviction for possession of a controlled substance. In regard to the other applicant, Dollar General allegedly received an incorrect background check, fired the applicant, and then refused to rescind the termination even after a manager was informed of the incorrect background check.

In regard to BMW, the EEOC alleged that BMW improperly screened out African-American workers based on criminal background checks. In that case, the EEOC filed suit on behalf of 69 people who worked for a company that provided logistic services to BMW at its South Carolina manufacturing facility. BMW ended the contract, informed the employees that they needed to reapply with a new contractor to retain employment, and directed the new contractor to perform new criminal background checks for the employees seeking to remain employed. The new contractor found that several employees had criminal convictions which were in violation of BMW’s criminal conviction policy, and those employees were terminated. This occurred despite some of the employees having worked at the BMW facility for multiple years. Again, it was the EEOC’s position that the company’s action disproportionately impacted African-American applicants.

More recently, the EEOC announced that transportation company, J.B. Hunt, had agreed to settle a race discrimination charge filed by the EEOC in part by modifying its hiring policies to comport with the EEOC's updated guidance on criminal background checks. The settlement came through a conciliation process over a claim that a single African-American candidate was denied a truck driver position based on a criminal conviction record that the EEOC believed was unrelated to the truck driving. The EEOC reviewed J.B. Hunt’s hiring practices as part of its investigation, and the conciliation resulted in not only a private settlement with the job candidate, but also in the company changing its policy on applicants with conviction records.

The EEOC has stated that one of its top priorities is to eliminate barriers to hiring. As a result, the EEOC is increasingly reviewing a company’s policies as part of its investigation procedure. If you have not reviewed your hiring policies, job postings and/or employee handbooks recently, you are urged to do so. Background checks notice and authorization forms should also be periodically reviewed to ensure compliance with the Fair Credit Reporting Act.

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