Tuesday, June 18, 2013

EEOC Targets Criminal Background Checks

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity . . . . 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.
And, the second lawsuit:
In Illinois, the Chicago office of the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected black applicants. That lawsuit charges that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks.
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.