The United States Equal Employment Opportunity Commission (“EEOC”) filed two separate lawsuits on June 11, 2013, one against a BMW manufacturing facility in South Carolina and the other against discount retailer Dollar General. Both lawsuits allege that the employers’ criminal conviction background check policy has a disparate impact on African Americans, who have a higher arrest and conviction rate than whites. The EEOC alleges in the lawsuits that the use of the criminal background checks violates Title VII of the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, religion, sex, and national origin. The two lawsuits are the first lawsuits to follow the EEOC’s revisions to its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (“Enforcement Guidance”), warning employers against using broad criminal checks in a way that could limit job opportunities for people with past convictions. The revised Enforcement Guidance, issued on April 25, 2012, further urges employers not to ask about past criminal convictions on job applications.

In EEOC v. BMW Manufacturing Co., LLC, venued in the United States District Court for the District of South Carolina, the EEOC filed suit on behalf of a class of sixty-nine black employees working for a contractor responsible for staffing and providing other support to a BMW-owned warehouse. When the contract between BMW and the contractor ended, the employees were informed they must reapply for employment through a new contractor to continue working at the warehouse. The employees’ qualifications had been previously screened by the first contractor, who prohibited employment to employees with convictions within seven years. The new contractor, however, was required to implement BMW’s screening policy, a policy with no time limitations for disqualification. The result was that numerous black employees who had previously worked at the warehouse under the first contract were denied employment with the new contractor. The complaint alleges that BMW’s background check policy creates a blanket exclusion, without any individualized assessment of the nature and gravity of the criminal offenses, the age of the convictions, or the nature of the position applied-for.

In EEOC v. Dolgencorp LLC d/b/a Dollar General, venued in the United States District Court for the Northern District of Illinois, the EEOC filed the lawsuit on behalf of black job applicants who were denied employment based upon Dollar General’s criminal background screening policy, a policy the EEOC alleges has a disparate impact on African Americans. Under Dollar General’s employment policies, once an applicant is given a conditional job offer, the conditional employee’s information is then submitted for a criminal background check. Dollar General and the vendor responsible for conducting criminal background checks use a matrix to measure specific felonies and misdemeanors against the timing of the crimes to determine the applicant’s qualification for employment. Upon screening, Dollar General is informed only if the conditional employee has passed or failed the screening, meaning no individualized assessment of the employee is provided to Dollar General. The EEOC’s complaint alleges that a disproportionate amount of black conditional employees are discharged by Dollar General as a result of its background check policies.

These recent lawsuits highlight the importance of employers ensuring their hiring policies and practices conform to the EEOC’s guidance, as well as state law. Of note is a recent amendment to Minnesota law, Minn. Stat. § 364.021, prohibiting Minnesota employers from asking about or considering an applicant’s criminal history until after the applicant has been selected for an interview or conditionally offered a job. Best practices by employers in the wake of the EEOC’s revisions to its Enforcement Guidance include providing a well-documented individualized assessment of the risks of hiring an applicant with a criminal history. For more information or questions regarding an employer’s use of criminal background checks, contact the author or any of Larkin Hoffman’s employment attorneys.