Criminal Background Checks of Prospective Employees

The EEOC is currently attacking employers with policies disqualifying job applicants who have been convicted of crimes.  On June 11, 2013 the EEOC announced that it was initiating litigation in federal court in South Carolina against BMW Manufacturing Co., LLC and had just filed another federal court case in Chicago against Dolgencorp dba Dollar General.  In both cases the EEOC claims that the employer’s use of criminal background checks in the hiring decision is not “job related and consistent with business necessity” but, instead, disproportionately disqualifies African Americans from jobs.

On June 28, 2013 the EEOC announced that it had reached a settlement with J.B. Hunt Transport, Inc. based on similar claims that the employer’s use of criminal background checks had illegally discriminated against African American job applicants based solely on the disparate impact of such checks regardless of whether there was any evidence of actual discriminatory intent by the employer.

The EEOC’s aggressive use of such disparate impact analysis in this context is new.  It’s important to remember that even the EEOC agrees that criminal background checks of prospective employees are appropriate where they are reasonably related to the job.  It’s unlikely that the EEOC will give much deference to the Employer’s judgment as to when a criminal history is reasonably related to any particular job.  For instance in the Dollar General case mentioned above the EEOC is challenging the employer’s judgment that a six year old conviction for possession of a controlled substance disqualified a black applicant for employment as a cashier and stocker.

Employers should be mindful of the Agency’s position and of its apparent desire to find employers to sue as examples.  The EEOC’s 4/25/12 Enforcement Guidance governing its investigation and prosecution of such claims is available here.

That said, the EEOC has had difficulty actually winning any cases that have gone to trial using its disparate impact theory about the use of criminal background checks or about the analogous use of credit reports of job applicants.  On August 17, 2013 a Maryland court dismissed a lawsuit that the EEOC had brought against an events services company for its use of criminal background checks and credit reports because, the court found, the EEOC had not produced evidence of actual discrimination by the employer.  Of course, even though the employer won its case in court, it was financially exhausted from the 4 years of litigation.

© 8/20/2013 Lawrence B. Hunt of Hunt & Associates, P.C.  All rights reserved.

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