After its 2012 modification to its guidance on the use of arrest and conviction records in employment decisions, one of the first cases brought by the U.S. Equal Employment Opportunity Commission (EEOC) has been settled. In a settlement last month, BMW Manufacturing Co., LLC (BMW) agreed to pay $1.6 million and provide employment opportunities to resentful African-American former employees and applicants. The settlement was granted by a federal court in South Carolina. BMW already revised their criminal conviction policy voluntarily.
In 2013, the EEOC launched a lawsuit against BMW, alleging that the company’s criminal conviction policy disproportionately excluded African Americans from employment and was neither job-related nor consistent with business necessity. In order to handle logistics at its facilities in South Carolina, BMW hired a contractor. Criminal background checks were performed on the employees who worked for BMW in accordance with the contractor’s policy, which only looked at convictions from the previous seven years. The employees were informed that they would need to reapply for employment with the new contractor when BMW moved contractors, and BMW gave the new contractor the mandate to run criminal background checks on each employee in accordance with BMW’s policy. Without regard to whether the conviction was a misdemeanor or felony, the age of the conviction, the nature or seriousness of the specific crime, or the period of time since the conviction, BMW’s criminal convictions policy prohibited all applicants with convictions in certain categories of crimes from employment. One hundred current employees, 80 percent of whom were African Americans, failed BMW’s rigid criminal background check; many of these employees had been with BMW for a number of years. These employees were all turned down for jobs with the new contractor.
The EEOC contended that BMW should have examined whether the policy was job-related and compatible with business need because the company’s criminal conviction policy disproportionately barred African Americans from employment. The EEOC asserts that BMW did not do this and that the policy was not tied to employment and compatible with business necessity as shown by the fact that many of the individuals affected by the policy had been employed by BMW for many years. Therefore, the policy, in the opinion of the EEOC, had a discriminatory negative impact on African Americans and was unlawful.
Despite the Fourth Circuit’s ruling in EEOC v. Freeman earlier this year, this significant settlement serves as a reminder to employers that utilizing criminal history checks to screen candidates or to otherwise inform employment decisions remains a particularly perilous undertaking. In Freeman, the Fourth Circuit sustained summary judgment in the employer’s favor following a challenge by the EEOC to the policy’s use of criminal background checks. The EEOC received harsh criticism from the court for a number of errors in their expert’s report on the harmful effects of the policy on minorities. Despite this, the Freeman court never addressed the question of whether the employer’s background check policy was appropriate. As a result, companies should continue to carefully assess their background screening procedures to make sure that their requirements are in line with business needs and connected to the job at hand. Employers must be ready to provide evidence of a valid business reason supporting the policy if the use of criminal background checks results in a disproportionate exclusion of minority candidates.
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Recent Legal Decisions: A Caution to Employers
These points are illustrated by a few recent court cases. The EEOC sued BMW and Dollar General in 2013 on the grounds that their background check policies are unfair to African Americans, who have a greater proportion of arrests and convictions than other races.
- With regard to certain criminal convictions, BMW has a blanket exclusion policy that forbids facility access for its employees and contractor employees; it does not specify a time limit with regard to the convictions; and it does not take into account the type or seriousness of the crime, the age of the conviction, or whether the conviction is relevant to the position. The EEOC believed that BMW’s policy was too broad.
- There were two situations at Dollar General. A conditional offer was made to a candidate who afterwards revealed a conviction for drug possession from six years prior. The offer was withdrawn because Dollar General considered this kind of conviction to be a 10-year disqualifying factor. Another applicant was rejected because she was wrongly listed as having a conviction in a criminal report. Despite the fact that she told her manager about it, the corporation did not reconsider its decision to fire her.
Finally, two African American employees alleged discrimination when they were fired due to state-mandated criminal background checks and disparate impact discrimination in another case, Waldon et al v. Cincinnati Public Schools.
These cases show that employers shouldn’t just forbid employing candidates based on their criminal histories and instead should analyze each applicant’s record individually, taking into account the type of offense, the length of time since the offense, and how the offense pertains to the job.
The United States sues Dollar General and BMW for using criminal records in hiring
Due to their use of criminal background checks to exclude job candidates or dismiss employees, discount retailer Dollar General Corp. and a BMW manufacturing facility in South Carolina have been sued this week by the Equal Employment Opportunity Commission.
The agency argues that both instances constitute discrimination against African-Americans, whose arrest and conviction rates are higher than those of white people.
The two lawsuits are the first since the agency updated its guidance last year, warning businesses against using it to exclude people with prior convictions from jobs by employing overly broad criminal background checks. According to the commission, it wants to make it easier for people with criminal histories who “have been held accountable and paid their dues” to find employment.
According to the EEOC, dozens of workers for a contractor that operated a BMW warehouse in Spartanburg, South Carolina, were impacted by BMW’s policy. The contractor had a rule that prohibited hiring anyone having a criminal record from the previous seven years. BMW fired anyone with a criminal record from any year when a new contractor took over the business and demanded a fresh round of criminal background checks.
70 of the 88 employees let go were black. The EEOC claimed in a lawsuit it filed in federal district court in Spartanburg that some of the employees had worked for BMW for more than ten years through the contractor. The commission asserts that the BMW policy is a “blanket exclusion,” making no distinction between the type and seriousness of the offences, their age, or whether they are pertinent to the type of job being done.
BMW will defend itself against the EEOC’s claims of racial discrimination, according to spokeswoman Sky Foster. The firm “believes that it has complied with the language and spirit of the law,” she added.
In the Dollar General case, the EEOC filed a federal district court action in Chicago on the basis of claims of discrimination made by two black job candidates who were turned down. According to the EEOC, one candidate received a job offer despite disclosing a 6-year-old conviction for drug use. She claims that her job offer was withdrawn because it was against Dollar General’s policy to hire anyone with a conviction of that nature within the previous ten years.
The EEOC claimed that a Dollar General applicant was fired by the corporation despite a false report indicating that she had a felony conviction. The agency alleged that even after she informed Dollar General of the error, the Goodlettsville, Tennessee-based business did not change its mind and let her go.
One of the EEOC’s strategic enforcement focuses, according to spokeswoman Justine Lisser, is eliminating barriers to employment. “We believe that these legal actions will increase the public and employer communities’ understanding of the proper application of criminal records.”
Requests for comment from a Dollar General spokeswoman were not immediately fulfilled.
Before bringing legal action, the EEOC claims it tried to settle both instances. It is asking for injunctive relief to stop discrimination in the future as well as back pay for individuals who were fired and rejected job seekers.
The new EEOC rules announced last year urge businesses to offer job candidates a chance to explain past criminal wrongdoing before they are dismissed. Additionally, it advises against questioning job applicants about their prior offenses.
Some firms view the checks as a method to screen out shady employees and fend off charges of careless hiring.
What Is the Own Background Check Policy of the EEOC?
Actually, I don’t know the answer to that. The EEOC is suing BMW Manufacturing Co. over BMW’s use of criminal background checks, so someone else will likely do so shortly.
As we’ve discussed in previous posts, the EEOC is being excessively (and occasionally unreasonable) aggressive in challenging employers’ criminal background check policies, alleging that such policies violate Title VII’s prohibition on discrimination based on race because they have a disparately negative effect on black applicants, who are more likely to have a criminal background. As we noted in “EEOC Slapdown Over Meritless Criminal Background Check Lawsuit,” a federal judge penalized the EEOC for bringing a lawsuit against a business for refusing to hire felons despite learning that the business did, in fact, hire felons and awarded them 3/4 of a million dollars in attorneys’ fees and costs. Furthermore, we noted in EEOC’s Attempt to Prohibit Use of Background Checks Rejected that the EEOC tried to sue a company that was lawfully using criminal background checks in compliance with the EEOC’s own guidance on “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”
According to the EEOC in the BMW case, BMW’s criminal background check program is neither relevant to my employment nor compatible with business necessity. BMW has requested that the EEOC create its own criminal background check policy for persons who seek for jobs with the EEOC in order to refute this allegation. The EEOC declined to provide the policy, claiming that it had no bearing on the legality of BMW’s policy. It claimed that the roles for which it applied its own rules did not resemble the relevant roles at BMW. The EEOC did not specify which positions it conducts background checks for, the court pointed out, and BMW was not “obliged to accept [the EEOC’s] conclusion… that the two methods are distinct” in the absence of being able to determine this for itself. The EEOC was therefore required by the court to create its own criminal background check policy.
I adore the fact that the organization suing businesses for their criminal background check procedures is now compelled to disclose its own guidelines. Don’t you think it would be intriguing to know what it says and whether it complies with the EEOC’s own guidelines? After all, being fair is the American way.
Does Samsung employ criminals?
No, Samsung doesn’t employ criminals. Keep in mind that before making an employment offer, Samsung conducts a background check to search for misdemeanor and felony offenses at the state and federal levels.
Will Starbucks employ a criminal?
Starbucks has more than 27,000 outlets, making it a significant global employer. According to data from 2016, the corporation employs over 238,000 people across all of its sites. If you’re applying for a position with the coffee shop chain, you might be curious about what a Starbucks background check entails and what to anticipate from the hiring procedure.
It’s crucial to remember that background checks are performed on Starbucks’ staff. However, these background investigations usually begin only after a conditional job offer has been made. The hiring process often consists of submitting an application and going through one interview. You will be required to give permission for a background check if you are given the job. The outcome of the background investigation will determine if you are authorized to begin business orientation. The average Starbucks background check takes no more than a week.
Starbucks is willing to hire convicts in accordance with business policy. The company’s statement on the subject states that all applicants, regardless of criminal past, are encouraged to apply. “We review each felon/felony on a case by case basis,” the statement adds. Starbucks will consider the type, seriousness, and applicability of the conviction as well as the length of time that has passed since the conviction.
Starbucks background checks (and how the firm handles specific criminal convictions) will differ from shop to store due to the company’s numerous retail locations. Various state rules govern how far back a background check can go. Different states have different regulations regarding whether or not hiring managers can take arrest records into account. The state’s rules and regulations should be reflected in Starbucks background checks.
Starbucks has “banned the box” across the board, so there won’t be any inquiries regarding criminal records on job applications. The business waits to ask about criminal background until after the interview and a conditional job offer.