Both lawsuits are disparate impact lawsuits, meaning that the criminal background check policies are not necessarily intended to discriminate based on race. But the policies disproportionately harm employees/applicants based on race. Employers can defend against such claims by establishing that the policy is job-related and consistent with a "business necessity."
If you'd like some guidance about how to avoid the EEOC's wrath, check out last year's enforcement guidance: Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.
HT: Friend and employee benefits attorney, Mike Chittenden via email.
Image: EEOC seal. Not official use.