Employment Law Update: Background Becomes Battleground

by Nexsen Pruet, PLLC

The Equal Employment Opportunity Commission (EEOC or Commission) recently filed federal lawsuits against Dollar General and a BMW manufacturing plant in South Carolina based on the EEOC’s revised guidance concerning use of criminal background checks.  The Commission’s new guidelines, revised last year, recommend that employers not ask applicants about past criminal convictions and encourage employers to give job applicants an opportunity to explain past criminal misconduct before they are rejected.  The EEOC emphasizes that background checks have a discriminatory impact on minorities and can violate Title VII of the Civil Rights Act – even if the background check policy applies to all applicants regardless of race.  

According to the Commission, Dollar General, the nation’s largest small-box discount retailer, has implemented and utilized a criminal background policy that resulted in employees being fired and job candidates being screened out for employment in a way that disproportionately affected minorities.  The EEOC’s lawsuit alleges Dollar General rejected two African-American applicants without regard to the specific circumstances of their criminal records.  The first had previously worked for another discount retailer for four years without incident, but also had a six-year-old conviction for possession of a controlled substance.  The second did not have a felony conviction at all; the records check was simply incorrect.

Closer to home, the EEOC alleges that BMW, at its facilities in Spartanburg, S.C., disproportionately screened applicants using a background check policy that was not job-related or consistent with business necessity.  In other words, the convictions that disqualified applicants were not closely related to their ability to perform the job.  According to the Commission, BMW’s “blanket” policy excluded all applicants, regardless of qualifications, based on several types of crimes, without taking into account the distinction between felonies and misdemeanors or the time elapsed since the conviction.  For example, the EEOC alleges that one African-American applicant was denied employment based solely on a 1990 misdemeanor conviction that was punished by a $137 fine. 

The two lawsuits are the first to be filed since the EEOC issued its revised guidance under Title VII.  In a statement, the Commission explained that “overcoming barriers to employment is one of our strategic enforcement priorities, (and) we hope that these lawsuits will further educate the public and the employer community on the appropriate use of conviction records.”  Both lawsuits are examples of the EEOC’s aggressive pursuit of its strategic enforcement priorities, and how these lawsuits are resolved will likely set the tone for future enforcement actions. 

Last month, at Nexsen Pruet’s Quarterly Breakfast Briefing, our Employment and Labor Law group addressed a number of the issues raised by the revised guidelines during a program titled, “Background Checks – New Challenges and Dependable Techniques,” and we will continue to monitor developments in these cases.  Please contact any member of our group with questions or comments.  Our next Quarterly Breakfast Briefing will take place in September and we will announce the topic in mid-August.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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