The Equal Employment Opportunity Commission (EEOC) brought two separate lawsuits on June 10, 2013, challenging criminal record check policies of two employers as having a disparate impact on black applicants and employees. These lawsuits illustrate the EEOC's continued focus on barriers to hiring, particularly barriers based on criminal history. 

The EEOC filed a lawsuit in Illinois federal court against Dollar General, a discount retailer, on behalf of a class of black applicants and conditional hires. In the lawsuit, the EEOC alleges that Dollar General's policy of conditioning its job offers on criminal background checks results in nationwide race discrimination. The Dollar General lawsuit follows in the footsteps of several other similar lawsuits and settlements by the EEOC targeting companies that screen applicants based on criminal history. 

The EEOC alleges that Dollar General's policy of disqualifying applicants based on certain criminal convictions was not job-related and consistent with business necessity because the policy does not take into account such factors as the age of the offender, the connection between the crime and the specific job duties, or the length of time since the offense. In the complaint, the EEOC cites an example of Dollar General rescinding a conditional offer of employment based on an applicant's six-year-old drug possession charge. In its press release, the EEOC noted that this applicant previously held a similar position with another retailer for four years.

The EEOC's theories in the Dollar General lawsuit emphasize the EEOC's position in its April 2012 guidance that employers must conduct an individualized assessment prior to disqualifying an applicant based on criminal history.   

In South Carolina federal court, the EEOC filed a lawsuit against BMW Manufacturing Co., LLC on behalf of approximately 70 black claimants. In contrast to the Dollar General lawsuit, the claims against BMW center on BMW's instruction to one of its contractors to conduct background checks on all employees hired by the contractor to work in BMW's warehouse in compliance with BMW's background check policy. 

The complaint alleges BMW had engaged a contractor to provide certain services at a BMW's warehouse. When the contract between BMW and the contractor ended, employees were informed they would need to reapply for employment through BMW's new contractor in order to continue working at the warehouse. Although the employees had previously been screened by the first contractor, the first contractor had relied on its own policy, which excluded employees only for convictions in the previous seven years. BMW instructed the new contractor to use BMW's background check policy, which had no time limitations for disqualification. According to the complaint, several employees were denied employment with the new contractor based on their criminal history, despite the fact that many of these employees had been working at the BMW facility for several years. Again, the EEOC alleges that BMW's policy fails to provide for an individualized assessment of the applicants' criminal history.

The EEOC has aggressively pursued claims around the country based on criminal record checks performed as part of more general background checks, relying heavily on its April 2012 guidance regarding the use of arrest and conviction records in hiring decisions. In compliance with the EEOC's guidance, employers should make sure that their policies and practices regarding the use of criminal history information are consistently applied and provide for an individualized assessment of the risks posed by a criminal history. Employment decisions made on the basis of criminal history information should be thoroughly documented to reflect a careful analysis of the job-related nature of the offenses and business necessity for making such a determination. Employers should also be familiar and comply with any applicable state law requirements, as a number of states restrict the collection of criminal record information on applicants and limit its use in making hiring decisions.