If an employer uses criminal background checks in determining if it is going to hire or retain an employee, the employer should look at the full circumstances or risk a successful employment discrimination claim based upon a claim of disparate impact on minorities. Recently in complaints filed in the Federal Courts in Illinois and South Carolina, the Equal Employment Opportunity Commission argues that Dollar General Corporation and BMW barred potential employees based upon their criminal background checks when they should have reviewed each applicant. The EEOC noted that such policies had an effect of discriminating against black applicants. Employment discrimination law focuses not only on disparate treatment but also a disparate impact. The EEOC is stating that even if Dollar General and BMW were not intentionally treating black applicants differently the criminal background checks have the effect of discriminating against black applicants because it impacted them worse. The EEOC stated that Dollar General revoked conditional employment offers for 10% of its black applicants, but only 7% of its non-black applicants between January 2004 and April 2007.
The EEOC states that BMW hired a new logistics contractor at its South Carolina assembly plant in 2008 and required 645 employees of the prior contractor to undergo new criminal background checks. Of those, 55% were black, but 80% of the 88 terminated employees were black. Some of the dismissed employees worked for various contractors at the BMW plant for as long as 14 years.
An attorney for the NAACP Legal Defense Fund praised the lawsuits as an important step against workplace discrimination stating that people who are trying to work and trying to be productive citizens are blocked from jobs on the basis of old convictions when they pose little danger. That attorney states that the rules concerning criminal background checks are particularly important because blacks are convicted of crimes more than whites. According to the federal Bureau of Justice, statistics show that black men were incarcerated 2010 at more than six times the rate of white men and nearly three times the rate of the Hispanic men.
The EEOC has set guidelines regarding criminal background checks that do not bar their use, but urge employers to consider the crime, its relation to the applicant’s potential job, and how much time has passed since the conviction. The message to employers is to take the criminal conviction in context both as to how many years have passed since the conviction and what the crime is in relation to the job sought. As with most employment decisions, an absolute zero tolerance policy without considering the context is often be imprudent and sometimes could be illegal. A blanket conviction equals no job rule, without considering when the crime occurred and whether the crime relates to the job, can get the employer in trouble.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].