The U.S. Equal Employment Opportunity Commission (EEOC) issued a press release on 06/11/2013 outlining their suit filed in U.S. District Court of South Carolina against BMW Manufacturing Co., LLC and a separate suit filed in Chicago against Dolgencorp, doing business as Dollar General. The EEOC alleges both employers violated Title VII of the Civil Rights Act through their policy on criminal background checks and that resulted in employees being terminated and others screened out of employment.
The UTi (BMW Vendor) employees worked at the BMW facilities until the contract with UTi ended. When these employees started, they were screened for criminal records during the previous 7 years. The new contractor accepted applications from all the current UTi employees and screened all of them according to the BMW policy, which has no time limit for convictions, resulting in some employees not being hired, even though they worked at the BMW facility for years.
In the Dollar General case, the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected African-American applicants. One had disclosed a six year old conviction for possession of a controlled substance. Even though she had worked for four years in a similar position with another employer her employment was denied. The second claimant alleged that the background check revealed a previous felony conviction, even though she did not have any convictions. Even though she advised the store manager of the apparent mistake, she was barred from employment.
We can expect more of these suites in the future. The EEOC made their position clear when they issued guidelines in April 2012. In short, the EEOC’s stance is that minorities have a higher criminal conviction rate than they account for in the general population, so therefore employers that screen for criminal convictions can be discriminating against minorities, a violation of Title VII of the Civil Rights Act. Generally, a blanket policy of “conviction = no job” will violate these EEOC guidelines and they may take actions against employers with these policies.
Criminal records can be considered for employment decisions. However, criminal records must be reviewed on an individual basis and an adverse action must be based upon if the record is job related and consistent with a business necessity. Several factors such as when the criminal act took place, the amount of time that has elapsed, the nature of the criminal act compared to the nature of the job, essential functions of the job, amount of supervision, etc. If an employer uses information contained in a background screening report (a consumer report) they have to give the employee a Pre-Adverse Action Letter, let them explain any mitigating circumstances or state that the record is inaccurate, then if/when a final decision is made not to hire, issue an Adverse Action Letter. If an applicant claims there is a mistake, the Pre-Adverse Action Letter tells them how to contact Safe-Screen and we will re-investigate.
Clients who need assistance with how to use criminal records and still remain in compliance with the EEOC and Fair Credit Reporting Act (FCRA) guidelines should contact us.
We understand that navigating the regulatory environment regarding backgrounds can be complicated, and that’s what we’re here for Keeping You Safe™. 855-866-SAFE – http://Safe-Screen.com
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