In a previous post here, I noted that the Equal Employment Opportunity Commission, or EEOC, had begun to focus on criminal background checks by employers. The thinking is that requiring criminal background checks can constitute illegal discrimination on the basis of race because a higher percentage of African Americans than Caucasians have criminal convictions. Thus, the recommendation has been that criminal background checks – and inquiries about a candidate’s criminal background on employment applications – be limited to applicants for positions where there is a bona fide need to have this information. The further recommendation has been that the information yielded in such an inquiry be weighed on the basis of its age and relevance. For example, a ten year old conviction should not carry the same weight as a one-year old conviction, and a conviction of assault would be relevant to different jobs than a conviction of theft.
The EEOC has now taken steps to enforce its position that the use of criminal background checks can be discriminatory. Specifically, the EEOC has filed lawsuits against Dollar General and BMW for basing employment decisions on criminal background checks, arguing in both cases that the requirement was applied in a racially discriminatory fashion. The Dollar General case was triggered in part by the fact that a criminal conviction discovered during a background check served as the basis for a decision not to hire a candidate, even after the candidate was able to establish that the conviction was not hers. The BMW case was triggered by the fact that employees were terminated long after hiring, without regard to the employees’ on the job performance, when criminal backgrounds came to light. In both cases, the EEOC argues that the criminal background check requirement was applied in a discriminatory fashion.
These cases will now wind their way through the courts. The outcomes should provide guidance to employers and employees alike as we navigate this relatively new area of inquiry.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should be consulted regarding any specific employment issues.