Criminal Background Checks Discriminatory?

Criminal Background Checks Discriminatory?

Case 36: Are Criminal Background Checks Discriminatory?

Are Criminal Background Checks Discriminatory?

In April 2012, the Equal Employment Opportunity Commission (EEOC) issued revised guidance on the use of arrest and conviction records in employment decisions. In it, the EEOC warned that the use of criminal background as an exclusion must be “job related and consistent with business necessity.” The EEOC noted that arrest and incarceration rates are high for African American and Hispanic men and so a blanket exclusion of applicants with criminal backgrounds is likely to have disparate impact and thus be a violation of Title VII of the Civil Rights Act of 1964.

A year later, June 2013, the EEOC filed its first lawsuits under the revised guidance against Dollar General and a BMW manufacturing plant in South Carolina. Both companies were accused of discriminating against African Americans. In the case of BMW, the issue arose when a new logistics service was hired. The previous service had a policy of only screening convictions that occurred in the past seven years. BMW did not have a screening time limit and ordered the new logistics service to do a new screening. Employees with convictions that violated the BMW policy of no time limit were terminated, even if they had worked for the company for years. The Dollar General case involves two applicants. One had her conditional job offer revoked due to a six-year-old conviction, even though she disclosed the conviction in the interview and worked for another retailer in a similar position for four years.

Reaction to the filing of the lawsuit was swift. The Wall Street Journal opined, “We would have thought that criminal checks discriminate against criminals, regardless of race, creed, gender or anything else.” The editorial goes on to say that one can argue that criminals deserve a second chance but “business owners and managers ought to be able to decide if they want to take the risk of hiring felons.” An EEOC spokesperson told the Associated Press, “Overcoming barriers to employment is one of our strategic enforcement priorities. We hope that these lawsuits will further educate the public and the employer community on the appropriate use of conviction records.”

Questions for Discussion

1. Do you agree with the EEOC or the WSJ?

2. Are blanket exclusions of people with criminal backgrounds discriminatory or should businesses be given the discretion to make the employment decision when a potential or current employee is found to have a criminal background?

3. How would you determine whether a conviction record is “job related and consistent with business necessity?”

4. What factors would affect your decision? Would it vary by the nature of the conviction? If so, how would it vary? Would it vary by the nature of your business and industry? If so, how would it vary?

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