By Joe Leibovich
The EEOC has filed two lawsuits, including one against Tennessee based Dollar General Corp., over the use of criminal background checks. The lawsuits filed this week against Dollar General and BMW essentially allege that the background checks have a disparate impact on minority employees and applicants.
The EEOC takes the position that background checks affect African Americans adversely due to disparities in arrest and convict rates between minority and White individuals.
The Agency issued guidance to employers in April 2012 regarding the use of criminal background checks. In that guidance, the EEOC reiterated its position that the fact of an arrest has little meaning, as that does not provide proof of criminal wrongdoing.
On the other hand, a conviction is reasonable proof that the person did what they were accused of.
But, according to the Agency, that alone is not enough in light of the disparate impact on African Americans. The EEOC turned to a 1977 Eighth Circuit case, Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977), to describe when the use of criminal background checks may be valid. The EEOC listed three Green factors
1. The nature and gravity of the offense or conduct;
2. The time that has passed since the offense or conduct and/or completion of the sentence; and
3. The nature of the job held or sought.
The guidance went in depth into each of these factors, and ultimately provided a set of “Employer Best Practices”. The EEOC states employers should:
- Eliminate policies or practices that exclude people from employment based on any criminal record.
- Train managers, hiring officials, and decisionmakers about Title VII and its prohibition on employment discrimination.
- Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
- Identify essential job requirements and the actual circumstances under which the jobs are performed.
- Determine the specific offenses that may demonstrate unfitness for performing such jobs.
- Identify the criminal offenses based on all available evidence.
- Determine the duration of exclusions for criminal conduct based on all available evidence.
- Include an individualized assessment.
- Record the justification for the policy and procedures.
- Note and keep a record of consultations and research considered in crafting the policy and procedures.
- Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.
- When asking questions about criminal records, limit inquiries to records for which exclusion would be job related for the position in question and consistent with business necessity.
- Keep information about applicants’ and employees’ criminal records confidential. Only use it for the purpose for which it was intended.
The EEOC has indicated this issue is a high priority for the Agency. And these new lawsuits would seem to indicate that is the case. Both Dollar General and BMW deny their policies are unlawful.
It is certainly not possible to predict whether or not the EEOC’s lawsuits will ultimately prevail. But, it is vital for employers to note that the EEOC is looking at these policies. Both lawsuits do stem from individual complaints, but it is possible the Agency could aggressively pursue employers over this issue.
In any event, and certainly while we wait for the results of this litigation, employers should take a look at their background check policies to see if they are in compliance with the EEOC’s guidance.