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

Legal Articles Additional Disclaimer is not a law firm and does not offer legal advice. Content posted on is the sole responsibility of the person from whom such content originated and is not reviewed or commented on by The application of law to any set of facts is a highly specialized skill, practiced by lawyers and often dependent on jurisdiction. Content on the site of a legal nature may or may not be accurate for a particular state or jurisdiction and may largely depend on specific circumstances surrounding individual cases, which may or may not be consistent with your circumstances or may no longer be up-to-date to the extent that laws have changed since posting. Legal articles therefore are for review as general research and for use in helping to gauge a lawyer's expertise on a matter. If you are seeking specific legal advice, recommends that you contact a lawyer to review your specific issues. See's full Terms of Use for more information.