EEOC Sues Employers for Using Criminal Background Checks
In two lawsuits filed by the Equal Employment Opportunity Commission on June 11, the agency accused two large employers of using criminal background checks to illegally discriminate against black workers.
On the same day, the EEOC filed suit in South Carolina against BMW and in Chicago against Dollar General, alleging that the companies, by requiring contracted employees and prospective employees to submit to criminal background checks, violated Title VII of the Civil Rights Act of 1964’s prohibition against race discrimination.
In BMW’s case, African-American workers who had been employed by a former contractor of BMW’s in its Spartanburg, S.C. facility were told that to keep their jobs they had to reapply to a new contractor, which was directed to screen based on BMW’s criminal conviction policy.
“BMW’s policy has no time limit with regard to convictions,” according to the EEOC’s press release. “The 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.”
Employees who were discovered to have criminal convictions were not hired back. Some of them had been working for the previous contractor for many years. While just over half of the employees who tried to get rehired were black, 80 percent of the 88 terminated employees were black, according to the complaint.
In Dollar General’s case, the EEOC filed on behalf of two African-American workers, both of whom had alerted the company to their situations but lost their jobs anyway.
One had been given conditional employment that was revoked when her six-year-old conviction for possession of a controlled substance was discovered under Dollar General’s blanket policy of denying employment based on that offense for the past ten years.
The other worker filed a complaint with the EEOC after she was fired based on a faulty conviction report that said she had a felony conviction. Despite the mistake, the store refused to rehire her.
Based on the company’s own numbers, 25 percent of its conditional job offers were made to blacks, but while only 7 percent of non-blacks were denied a job based on background checks, 10 percent of blacks were – a “gross disparity” that the EEOC called “statistically significant,” according to the complaint.
The EEOC said both companies’ actions amount to racial discrimination. “This stems from the disparate impact that the use of criminal background checks has on African-Americans,” explained an EEOC spokesperson. “Generally, the rates of incarceration, arrest and conviction are higher for African-Americans (and Hispanics) than their representation in the general population.”
So even though neither BMW nor Dollar General were screening applicants based on race – which of course would clearly be illegal – the disproportionate impact of its policies on black workers was enough to merit the complaints.
“The whole point of the disparate impact analysis is to remedy situations in which race discrimination results from the impact a neutral rule has on a protected group and where the employer cannot show business necessity and job-relatedness,” explained the spokesperson “Intent to discriminate is irrelevant to a disparate impact analysis.”
Background checks in and of themselves are not illegal, according to the EEOC. “However, like any neutral rule that has a disparate impact, their use must be shown to be job-related and consistent with business necessity to avoid liability,” said the spokesperson.
Thus, employers must be cognizant of how their policies are affecting workers. “[I]f it appears that members of particular groups are being disproportionately affected, [the employer] should then determine whether the policy is job-related, consistent with business necessity, and no less discriminatory alternatives exist,” the spokesperson said.
The EEOC uses a three-part test to determine whether the use of a criminal conviction record is discriminatory, looking at: the nature and gravity of the offense; time passed since the conviction; and the nature of the job at issue. Employers are encouraged to make decisions on a case-by-case basis and not for groups at a time.
It can be tough for workers who are asked to submit to background checks to know whether they are being discriminated against because they usually don’t know what is the relevance of a criminal record to the job criteria and who else is competing for the job.
But, says the EEOC spokesperson, “If an application form asks about criminal records or states that no one will be considered if they have a record, without any provision for an individualized assessment, that could be a sign that there is a discriminatory impact.”