Tuesday, June 18, 2013

EEOC Files Suit Against BMW and Family Dollar for Use of Criminal Background Checks

In Wisconsin under the Wisconsin Fair Employment Act (WFEA), it is expressly unlawful for an employer to discriminate against a potential or current employee over their arrest and conviction record.  However, there is no comparable law at the federal level and the Equal Employment Opportunity Commission (EEOC) has been actively seeking to pursue this type of claim as they believe that employers that use criminal background checks to make employment decisions have a disparate impact that unlawfully discriminates under Title VII.  Toward that end, this month the EEOC announced two lawsuits, one against BMW and one against Family Dollar, alleging that they implemented and utilized criminal background policies that resulted in African American employees and applicants being discriminated against in violation of Title VII of the Civil Rights Act.

In the lawsuit against BMW, the EEOC claims that the company maintains a criminal conviction policy that denies facility access to BMW employees and employees of BMW contractors with certain criminal convictions.  The biggest problem with the policy, the EEOC found, is that it “is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.” As a result of this policy, the EEOC claims that BMW has engaged in unlawful conduct in violation of Title VII as it terminated numerous employees at a newly-contracted logistics company that had employees that violated their criminal background policy, many of which were African-American.

In the EEOC's lawsuit against Family Dollar,  the EEOC argues that “Dollar General conditions all of its job offers on criminal background checks, which result in a disparate impact against blacks.”

Like Wisconsin's "substantial relationship" defense used by employers who claim an applicant's prior conviction(s) are "substantially-related" to the position sought, the EEOC likewise subscribes to a defense against criminal background check discrimination: when doing so is consistent with business necessity.  However, the EEOC has only provided two examples of how "business necessity" would be met so far:
First, an employer could validate its criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedure Standards. Second, an employer could develop targeted screens considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the application of the policy is job related and consistent with business necessity.

Obviously the EEOC's policies and actions should serve as more of a deterrent for Wisconsin Employers as they could face not only state actions for criminal background check policies, but also federal action under Title VII.

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