Revisiting Criminal and Credit Records Checks

In June 2013, the EEOC filed two lawsuits, one against BMW and the other against Dollar General (EEOC v. BMW Manufacturing Co.,Inc.; EEOC v. Dolgencorp LLC d/b/a Dollar General). In both, the EEOC asserts each company discriminated against African American job applicants through the improper use of criminal background checks as an applicant screening tools which were not job-related and consistent with business necessity and resulted in disparate impact.

In BMW, the claimants were employees of a company that provided logistical services to BMW. That company conducted criminal background checks, but they were limited to convictions within the past seven years. The company ended its contract with BMW and the employees had to reapply for jobs at BMW and subsequently had to undergo another criminal background check. During that process, several employees were found to have criminal convictions and were told they were no longer eligible for employment. At  issue appears to be the duration of time since the conviction. The EEOC states “The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.” While the Fair Credit Reporting Act allows for the use of criminal record checks in screening regardless of the time frame, the EEOC has considered limiting this to seven years.

In Dollar General, the company had made certain types of conviction a disqualifying factor for employment. One applicant with a six year old drug conviction was given a conditional offer of employment despite having worked for years at a similar retailer while another was rejected for employment when records showed she had a felony conviction when she did not. The EEOC charges Dollar General’s policy of conditioning all job offers on criminal background checks results in disparate impact.

The EEOC has long viewed criminal records checks as a particular threat to adverse impact against African American and Hispanic applicants resting on data showing they are convicted at a rate disproportionately greater than their representation in the population. EEOC guidance suggests such records checks are unlawful under Title VII in the absence of a justifying business necessity. Each of these cases highlight the aggressive position the EEOC is taking on this issue and their intent to ensure compliance with their 2012 guidance on the use of criminal records in employment decisions.

Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.

Leave a Reply