On June 11, the EEOC filed its first test cases under its guidance on the use of criminal records in making hiring decisions. The defendants are Dollar General Corp. and a BMW manufacturing plant in South Carolina. The claims, filed in federal courts, allege that the defendants’ use of criminal background checks disproportionately excluded Black candidates on the premise that Blacks have a higher rate of criminal convictions than Whites.
As background, you may recall that in 2012, the EEOC issued Guidance on the use of criminal records in employment decisions which states that the EEOC will find any policy that automatically excludes applicants due to criminal records constitutes evidence of discrimination. According to the Guidance, arrest and incarceration rates for Blacks and Hispanics are 2 to 3 times greater than for Whites; therefore, using criminal records as a bar to employment disproportionately excludes minorities and results in disparate impact discrimination.
The EEOC requires that when an employer asks whether an applicant has criminal convictions, an employer must state that conviction is not an automatic bar to employment. When a criminal conviction is disclosed either on the application or in a background check or both, the employer must conduct a “targeted screen” to consider the nature of the job, the nature of the offense, and the time passed since the conviction and/or completion of the sentence. The employer must also conduct an individualized assessment by informing the job candidate that s/he may be excluded from employment due to the conviction and provide an opportunity to describe or explain circumstances including age at time of conviction, rehabilitation, mistaken identity, employment history after conviction or other factors.
Dollar General and the BMW plant have been accused of having policies that automatically bar employment without following the targeting screening and individualized assessment process. Both deny the allegations.
The claims against Dollar General allege that its policy that automatically bans candidates who have been convicted of possession of drug paraphernalia or flagrant failure to pay child support within the last 10 years, or illegal dumping or improper supervision of a child within the last 3 years is unlawful because it fails to consider other factors such as the age of the applicant when the crime was committed and whether the crime is related to the job. The lawsuit alleges that Dollar General’s policy has unlawfully excluded candidates nationwide for almost 10 years.
The BMW manufacturer is charged with discriminating against Blacks when it required its new warehouse staffing contractor to conduct criminal background checks on all current and new employees and terminate or exclude anyone who had a criminal record from any year. The previous contractor excluded candidates with a criminal record within 7 years. The new contractor was hiring the old contractors, and as a result of BMW’s new policy, 88 workers were discharged, 70 of them Black, including some who had worked at the warehouse for more than 10 years.
While these cases may take years to conclude, depending on how they are resolved, they may test EEOC’s interpretation of what constitutes evidence of disparate impact under Title VII. Meanwhile, employers should refrain from implementing policies that automatically exclude job candidates based on specific parameters of their criminal convictions, such as time of conviction or type of crime. Instead, employers should examine whether the crime for which the candidate was convicted is related to the nature of the job; for example, a conviction of forging checks may be related to a cashier or bookkeeping position and may therefore be a bar to employment. Employers should also consider the individual’s circumstances, such as the candidate’s age at the time of the conviction, how much time has passed, and whether the candidate has been able to hold any jobs or complete education after the conviction. In the event employment is denied on the basis of a criminal record, the employer should have a justifiable basis for the denial.
This article is authored by attorney Laura Bailey Gallagher and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
