Follow Up to the EEOC’s Guidance on Criminal Background Checks

Last month the Equal Employment Opportunity Commission (EEOC) filed suit against BMW and Dollar General for violating Title VII of the Civil Right Act by utilizing criminal background checks that resulted in African American employees either being fired or being disqualified for new positions (see post titled “Dollar General and BMW Latest EEOC Victims”).

BMW was accused of using criminal records outside of the 7 years reporting period set for in the Fair Credit Reporting Act (FCRA). The EEOC explained that BMW’s policy was “blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the age of convictions, or the nature of the claimant’s respective positions.”

The last 20 years has brought an increase in the number of Americans involved with the criminal justice system. According to the EEOC at the end of 2007, 3.2% of all adults in the United States were involved in a parole program or were incarcerated.

Unfortunately the rates for African American and Hispanic males are much higher, resulting in an increase in the number of workers who have criminal records (and potentially being disqualified due to these records). The EEOC responded last year by issuing guidance for employers who receive criminal records on a background check (see post title “Received a Criminal Background Record…Now What?”), specifically employers must take into account three factors:

• Convictions: was the applicant actually found guilty? Did they plead “no contest” to the crime, or was it just an arrest for which the charges were dropped?
• Length of time: how long has it been since the crime was committed? Is it fairly recent—say, within the last seven years?
• Is the crime relevant to the job being sought?

Employers must ensure that their background screening policy references the EEOC guidance, in order to reduce their liability.