Well, they warned you. And we told you so, too.
Last year, the Equal Employment Opportunity Commission issued guidelines for how they believed employers should approach the use of criminal background checks in employment decisions. They gist of the policy was that the background checks should only be used when the crime has something to do with the nature of the position. For example, you might pass on hiring a twice-convicted check forger as an accountant.
Why did the EEOC suddenly care about background checks? After all, who you hire is your business, right?
It's because the use of background checks, in effect, is racist. Statistically, certain ethnic groups make up a disproportionately-high percentage of our nation's penal system, from the incarcerated, to the paroled. When background checks are employed, and employment decisions are made on the basis of those checks, there is a disparate impact on certain groups.
You remember disparate impact theories from law school. They now apply to your company's use of background checks.
In twin lawsuits recently announced by the EEOC, the organization has filed suit against BMW and Dollar General, reports Reuters. For BMW, when they switched contracting companies in Spartanburg, SC., all employees that wished to be retained had to reapply to the new company. As part of that process, even long-term employees had to submit to background checks. While African-Americans made up 55 percent of the plant's workforce, they made up 80 percent of the affected employees.
Dollar General, meanwhile, had a more traditional post-offer, pre-employment background check policy. Seven percent of non-black applicants had their offers rescinded, while ten percent of black applicants had their offers pulled.
It is interesting to note that both companies' policies were company-wide and not analyzed on a case-by-case basis, likely making disparate impact the only viable theory.
For your company, at least until this litigation shakes out, the best policy for avoiding litigation is to follow the EEOC's guidelines as much as possible, even if they lack the force of law. That means relating background checks to job descriptions and using checks only when necessary.
- Pepsi Settles EEOC Racial Bias Case for $3.1 Million (FindLaw's In House Blog)
- EEOC Files Suit Against Two Employers for Use of Criminal Background Checks (EEOC Press Release)
- Does Your Company Have a Clear Paternity Leave Policy? (FindLaw's In House Blog)