Anyone who has attended one of my seminars over the past year will know that I have been warning that the EEOC is going to start taking a hard look at the use of background checks. Well here it is – the EEOC has recently filed two cases involving the use of background checks. The EEOC’s Charlotte district office filed suit in U.S. District Court of South Carolina against BMW Manufacturing Co., LLC, and a separate suit was filed in Chicago against Dolgencorp, doing business as Dollar General.
In April of 2012, the EEOC issued updated enforcement guidance on employer use of arrest and conviction records. While these guidelines essentially summarized years of case law and EEOC positions regarding the use of background checks, issuing the formal guidelines was a warning that the EEOC was going to be looking closely at the issue of the proper use of background checks.
According to an EEOC Press Release issued last month, in the Illinois case, 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.
One of the applicants who had filed a charge with the EEOC was given a conditional employment offer, although she had disclosed a six-year-old conviction for possession of a controlled substance. Her application also showed that she had previously worked for another discount retailer as a cashier-stocker for four years. Nevertheless, her job offer was allegedly revoked because Dollar General’s practice was to use her type of conviction as a disqualification factor for 10 years.
The other applicant who filed an EEOC charge was fired by Dollar General although, according to the EEOC, the conviction records check report about her was wrong – she did not have the felony conviction attributed to her. The EEOC said that although she advised the Dollar General store manager of the mistake in the report, the company did not reverse its decision and her firing stood.
“Title VII of the Civil Rights Act of 1964 prohibits discrimination against job applicants and employees on account of their race,” said EEOC Chair Jacqueline A. Berrien. “Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions, the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII.”
Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation. The EEOC will assert claims of disparate impact, in both cases, against African Americans. The Commission will seek back pay, as well as injunctive relief to prevent future discrimination of employees and applicants.
If you have questions using background checks in your business or compliance with other laws governing your company, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.
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