By Katie Graham
On May 1, 2012, we posted in this blog that the EEOC issued enforcement guidelines to scrutinize employers' use of criminal background information in employment decisions. In January 2013, the EEOC issued a Strategic Enforcement Plan FY 2013-2016, revealing its intent to target blanket criminal background check policies that may have a disparate impact on racial minorities.
Now, the EEOC has decided to take action based on the premise that background checks disproportionately and unjustifiably exclude people of a particular race or national origin.
On June 11, 2013, the EEOC filed a lawsuit against Dollar General alleging its use of criminal justice history information in the hiring process disparately impacts black applicants. See EEOC v. Dolgencorp LLC, d/b/a Dollar General, Case No. 1:13-cv-04307 (N.D. Ill. June 11, 2013). The suit alleges that Dollar General excluded all applicants who failed a background check and that such exclusion was neither job-related nor consistent with business necessity.
On that same day, the EEOC filed a lawsuit against BMW alleging its South Carolina manufacturing facility excluded a disproportionate percentage of black individuals from employment. See EEOC v. BMW Manufacturing Co., LLC, Case No. 7:13-cv-01583 (D.S.C. June 11, 2013). The EEOC specifically mentions in its complaint that BMW did not undertake an "individualized assessment of the nature and gravity of [the employees'] criminal offenses, the ages of the convictions, or the nature of their respective positions." The lawsuit alleges that the disparity in rates at which black and non-black employees were denied employment on account of BMW's criminal background check policy is "statistically significant."
By no means is the EEOC suggesting criminal background checks are forbidden by employers, but it is suggesting that individuals should not be automatically excluded for employment based on criminal convictions alone without further inquiry. Excluding individuals from employment based on prior convictions is risky unless the conviction is job-related and the exclusion is consistent with business necessity. Employment policies that exclude individuals for any criminal conviction are likely the most vulnerable and the most likely to be scrutinized by the EEOC.