On June 11, the Equal Employment Opportunity Commission (EEOC) filed lawsuits against Dollar General and a BMW facility in South Carolina for allegedly using criminal background checks of potential employees in an unfair and discriminatory manner. This comes just over a year after the EEOC updated its rules in April 2012 to prevent racial discrimination, recommending that employers consider the nature of the crimes on an applicant’s criminal record, how long ago the crimes occurred, and how and if the crimes relate to the job. The EEOC made the recommendations because while the percentage of Americans with a criminal record has increased over the past 20 years, African-Americans and Hispanics are arrested two to three times as much as the rest of the population of the United States.
In the Complaint, the EEOC alleges that Dollar General used criminal background checks in a discriminatory manner for two applicants, one of which had a mistake on her background check that incorrectly showed a felony conviction. The EEOC also alleges that BMW did not consider the nature of applicants’ crimes or how old the crimes were after a disproportionate number of African- Americans were fired when contract workers had to reapply for their jobs in 2008. In both lawsuits, the claimants are African- Americans.
In response, both employers insist that in order to maintain a safe work environment for customers, coworkers, and assets, criminal background checks must be conducted in a lawful manner. Many believe that the EEOC is overstepping its bounds. EEOC Commissioner Constance Barker, who was the only person on the five-member panel to vote against the April 2012 recommendations, said, “the only real impact [of these recommendations]…will be to scare business owners from ever conducting criminal background checks.” The obvious issue is that employers can be sued either way: if they do conduct background checks on applicants, they can be sued for discrimination when they use the information to make a hiring decision. If they do not conduct a background check on applicants, they can be sued for negligence if a worker with a criminal background assaults or steals from a customer or coworker.
Do you agree with the EEOC that conducting background checks is a racially discriminatory practice, or do you think it is a responsible and race-neutral business practice? Let us know in the comments.