Guess our timing couldn’t have been better.
As our June 16 edition was rolling off the presses with its cover story, “Watch Your Step”—a feature exploring the EEOC’s increased focus on candidate-screening practices, including criminal background checks—the EEOC announced suits against a BMW manufacturing facility and Dollar General, alleging they engaged in HR practices involving criminal-background checks that had an adverse impact on African-American workers.
As our story notes, recruiting and hiring continue to be top priorities for the EEOC, which prominently included them in last December’s Strategic Enforcement Plan. In line with that, the agency has argued that screening out people with convictions can be discriminatory to African-Americans and other minority groups.
Apparently, the EEOC is making good on its promise to crack down on employers. In the BMW case, involving employees of a contractor, the agency alleges that the auto manufacturer disproportionately screened out African Americans through its policy to deny facility access to employees and employees of contractors with certain criminal convictions, without any time limits. One of its contractors (UTi Integrated Logistics), however, limited its criminal background-check reviews to seven prior years.
When BMW replaced that contractor with another, the EEOC press release said, some of the contract workers who were invited to reapply for jobs with the new contractor were told that “they no longer met the criteria for working at the BMW facility and were subsequently terminated and denied rehire … .”
The Dollar General case, meanwhile, involves two job applicants. One alleged the applicant had a job offer revoked by the discount retailer because of a prior conviction; the other alleged the applicant was denied employment based on a felony conviction attributed to her that had never occurred.
The cases are believed to be the first brought by the EEOC since it issued guidance last year regarding the use of arrest and conviction records in the hiring process. But if employment attorneys are correct, HR leaders should expect more to follow.
Rod Fliegel, co-chair of the hiring and background checks practice group at Littler Mendelson, notes the new lawsuits reflect the EEOC’s vigorous interest in enforcing the Commission’s interpretation of Title VII of the Civil Rights Act of 1964 and predicts “a flurry of new EEOC charges and broad-based investigations” over the next 12 to 24 months.
Most of those interviewed for our June 16 cover story seem to agree that the issue represents one of the more slippery slopes for employers today as far as compliance is concerned.
As Jonathan Segal, a partner with Duane Morris in Philadelphia, points out: “This is an area where, in my view, employers are between the cross hairs—between the risk of a claim by the EEOC and the risk of a negligent-hire claim.”
Indeed, as you’ll read in “Watch Your Step,” there are no shortages of grey areas and the universal advice of employment attorneys for employers seems to be: tread carefully! “There’s no bright line that you can draw in this area, nor does the EEOC want you to draw a bright line … or the courts, for that matter,” points out Gary D. Friedman, a senior partner with Weil Gotshal & Manges.