Many of our clients ask us why we utilize an investigator to do background checks - this is just one of the reasons we do not use other methods of background checking.
According to Robin Largent of Carothers, DiSante & Freudenberger, earlier this month, the EEOC filed lawsuits against two companies, BMW Manufacturing and Dollar General, alleging that their criminal background check policies discriminated against black applicants in violation of Title VII. According to the lawsuit against BMW, BMW had a policy that barred employment to applicants with certain criminal convictions regardless of how old the conviction was, the nature or gravity of the offense, or the nature of the employment position sought. The EEOC charged that BMW's policy had a disparate impact on blacks and constituted unlawful employment discrimination.
In the case against Dollar General, the EEOC similarly alleges that Dollar General’s criminal conviction policy disparately impacts black applicants as well. In some cases, the report was incorrect. In both cases, the EEOC is seeking back pay as well as injunctive relief.
The EEOC increased attention and enforcement efforts in this area serves as a reminder to employers of the need to review their criminal background check policies (as well as similar questions on their employment applications) to try to ensure that the policies pass muster under the EEOC’s guidance.
California employers must also be mindful that California has some additional restrictions on the scope of criminal background checks used for employment purposes – e.g. California Labor Code section 432.8, which prohibits employers from considering certain marijuana-related convictions in making employment decisions. Thus, California employers need to ensure that their policies and procedures comply with both federal EEOC guidance and California law.