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EEOC FLEXES MUSCLES ON USE OF CRIMINAL HISTORY —TWO LAWSUITS FILED

by Adair Melinsky Buckner on Sep. 23, 2013

Employment Employee Rights Employment Employment  Employment Discrimination 

Summary: Equal Employment Opportunity Commission (EEOC) rules for use of criminal history.

EEOC rules on criminal history useThe Equal Employment Opportunity Commission (EEOC) continues to emphasize its distaste for employer criminal background checks in the employment process, especially when they are not very carefully used. The EEOC filed suits against Dollar General and a contractor running a BMW plant in South Carolina for use of information obtained through criminal background checks to reject an applicant for a job or to fire employees, claiming the practice results in discrimination against blacks because of their higher arrest and conviction rates than Caucasians.

The EEOC revised its guidance on use of criminal background checks last year, warning employers not to use them overly broadly to limit job options for persons with past criminal convictions. That guidance advised employers they should allow job applicants to explain past criminal misconduct before rejecting them, and that the conviction should bear a relationship to the job at issue before rejection of the person. The guidance recommended in general that employers stop asking about past convictions on job applications. This sets the backdrop for the recent EEOC enforcement actions and shows the EEOC is serious about this guidance.

In the EEOC case against the BMW contractor, the prior contractor running the manufacturing plant had a policy that it would not employ a person who had a criminal conviction within seven years prior to the background check. The practice got even worse in the eyes of the EEOC when a change of contractors occurred.  The subsequent contractor had new criminal histories run on existing employees and then fired any employee with any criminal record.

Seventy out of the eighty-eight fired workers at the plant were African-American. Some of them already had worked for BMW, through contractors, over ten years. The EEOC’s lawsuit alleges that the contractor’s policy is an improper "blanket exclusion" based on convictions, giving no regard for the type and seriousness of the crimes, how long ago they were, or the relevance to the job, and it disproportionately affected blacks in a discriminatory result.

The EEOC case against Dollar General is a nationwide challenge to the company’s broad rejection of applicants based on criminal history. The suit involves one black applicant who was first accepted for employment despite having a possession of controlled substance conviction from 6 years prior, but later rejected her when the company changed its mind and said its policy was to reject anyone with that type conviction within the previous ten year period. The case also involves another black applicant who was rejected by Dollar General even though she showed the company that the report which listed a felony conviction for her was wrong.

The EEOC indicated that it hopes these lawsuits will educate the public and employers on how to appropriately use criminal conviction records.

Employers rightly see criminal background checks as a tool to avoid hiring questionable workers and prevent negligent hiring claims, but the checks must be carefully administered and applied. The EEOC may be visiting and suing employers who blindly apply criminal background checks which result in weeding out disproportionate numbers of a protected class, when there is no true justification in relationship to the job. Proceed with caution, employers.

To learn more about Adair and her practice visit her profile page and Labor & Employment Law page.

photo credit: kevin dooley via photopin cc

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