EEOC targets employers screening for old convictions

Criminal convictions should have an expiration date and shouldn’t be considered indefinitely by employers, the Equal Employment Opportunity Commission (EEOC) indicated in a pair of lawsuits filed June 11, 2013.

Dollar General lawsuit

The EEOC also sued Dolgencorp, doing business as Dollar General, in Chicago. For 10 years Dollar General made certain types of convictions a disqualifying factor.

One of the applicants who filed a charge with the EEOC was given a conditional employment offer, despite having disclosed a six-year-old conviction for possession of a controlled substance. She had worked for another discount retailer as a cashier-stocker for four years. Her job offer, however, was revoked.

Another candidate was rejected when the conviction-records-check report indicated she had a felony conviction even though she did not.

“Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions, the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII,” said EEOC Chair Jacqueline A. Berrien.

In a statement, Dollar General denied the EEOC’s allegations and said it would vigorously defend itself against them in litigation.

“Dollar General is an equal opportunity employer and prohibits discrimination in its hiring and employment practices,” the company said. “Like most retailers and other employers, Dollar General has a policy of using criminal background checks to determine if an individual meets its criteria for employment. Dollar General’s criminal-background-check process is structured to foster a safe and healthy environment for its employees, its customers and to protect its assets in a lawful, reasonable and nondiscriminatory manner.”

BMW lawsuit

The EEOC also filed suit against BMW Manufacturing in the U.S. District Court of South Carolina, Spartanburg Division, alleging that the company’s criminal conviction policy unlawfully screens out blacks from jobs and is not job-related and consistent with business necessity.

The car manufacturer’s policy denies facility access to BMW workers and employees of contractors with certain criminal convictions and has no time limit on convictions. “The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions or the nature of the claimants’ respective positions,” the EEOC stated.

The claimants were originally employees at UTi Integrated Logistics, which provided logistic services to BMW at the South Carolina facility. UTi’s criminal background check is limited to convictions within the past seven years.

In 2008, UTi ended its contract with BMW. UTi employees had to reapply for their BMW warehouse positions with the new contracting firm. As part of the application process, BMW made the contracting company perform new criminal background checks on all UTi employees applying for jobs. The new contractor discovered that several UTi workers had criminal convictions. They were told they no longer met the criteria for working at the BMW facility, even though many had been there for years.

BMW did not return a call for comment.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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