It has been just over one year since the Equal Employment Opportunity Commission (EEOC) issued revised guidance for employers using broad criminal background checks. The guidance warned against using criminal background checks to exclude applicants without establishing why a criminal record should disqualify an applicant.
The EEOC has now filed its first two lawsuits on the issue since issuing the guidance last year.
The first was filed against BMW after a policy change expanded the use of criminal record checks in hiring decision. The warehouse in South Carolina previously had a policy that excluded applicants if they had a criminal record within the past seven years. When a new contractor took over the warehouse, BMW changed the policy to exclude anyone with any criminal record at any point in time. Of the 88 workers who were fired, 70 were black.
The second case involves two prospective employees of Dollar General, both of whom are black. One applicant was offered a job after she disclosed a six year old conviction for possession of a controlled substance, only to have the offer revoked alleged because Dollar General’s policy was not to hire anyone with such a record within the past 10 years. The second applicant was fired when a criminal record check showed she had a felony conviction, even after she told Dollar General that it was a mistake.
Both of these cases highlight the importance of employers using criminal background checks carefully when making employment decisions. In order to justify the use of criminal background checks, employers should consider the following:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense, conduct and/or completion of the sentence; and
- The nature of the job held or sought.
By identifying how a specific conduct is linked to job performance, an employer can better explain why a background check is a valid element of a hiring process. It is also important to conduct an individualized assessment, allowing applicants to address their criminal record, especially inaccuracies and any reasons why the exclusion should not apply. And of course, employers must abide by the new CORI regulations.