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If You Conduct Criminal Background Checks on Your Employees and Job Applicants, Now is the Perfect Time to Review Your Criminal Conviction Policies


If You Conduct Criminal Background Checks on Your Employees and Job Applicants, Now is the Perfect Time to Review Your Criminal Conviction Policies

As part of its Strategic Enforcement Plan, the EEOC aims to eliminate barriers in hiring, including employment policies and practices that discriminate against racial and ethnic groups.   In particular, the EEOC has increased its focus on the use of criminal convictions in employment, implementing new enforcement guidance on the issue in April 2012.  It did not take long for the Commission to take an even stronger position, filing suit in June 2013 against two employers alleging Title VII violations for utilizing criminal background check policies that resulted in employees being terminated or job applicants being screened out for employment.  The EEOC also settled a race discrimination charge regarding criminal conviction records.  These cases, as well as the EEOC guidance, provide significant insight into how the EEOC analyzes criminal conviction policies and practices.  

In the South Carolina case, EEOC v. BMW Manufacturing Co., LLC, the EEOC alleged that the company’s criminal conviction policy was not job related or consistent with business necessity because it served as a “blanket exclusion.”  BMW Manufacturing’s policy had no time limits, and no individualized assessment of the nature and gravity of the crimes in question.  In the case, the claimants were formerly employed by one of BMW Manufacturing’s contractors, and they worked at a BMW facility.  When the contractor ended its relationship with BMW, the claimants applied for employment with the new contractor in order to retain their jobs.  BMW Manufacturing ordered the new contractor to perform criminal background checks on all of the applicants applying for transition of employment.  The new contractor discovered that several individuals had criminal convictions.  The claimants were ultimately told that they failed to meet the criteria to work at a BMW facility, and were denied employment.   

In EEOC v. Dolgencorp LLC d/b/a Dollar General, a nationwide lawsuit filed in Illinois, the EEOC alleged that, since at least January 2004, Dollar General subjected a class of African-American applicants throughout the United States to race discrimination in violation of Title VII, by using criminal history information as a selection criterion.  Dollar General allegedly created a “matrix” identifying specific convictions requiring rescission of a job offer or disqualification of a job applicant, if the convictions occurred within a certain time frame.  For example, an applicant was given a conditional job offer but was ultimately denied employment because a background check revealed a conviction that Dollar General used as a disqualification factor for a 10-year period.  According to the EEOC, Dollar General did not establish a nexus between the crime and the specific job duties.   

The EEOC also entered into a five-year conciliation agreement with J.B. Hunt Transport, Inc. in June 2013, to settle a race discrimination charge.  The charging party, an African-American job applicant, alleged that he was denied a truck driver position in 2009 based on a criminal conviction.  The EEOC contended that the conviction was unrelated to the job to which the applicant applied.  The EEOC also took issue with J.B. Hunt’s broader hiring practices regarding criminal convictions, noting that blanket prohibitions are in conflict with the EEOC’s guidance.  As part of the conciliation agreement, J.B. Hunt revised its policy on criminal convictions, and agreed to provide job selection and hiring training in order to bring its practices in alignment with EEOC guidance.  J.B. Hunt also entered into a private settlement with the charging party.

The EEOC’s criminal convictions activity has caught the attention of many who have an interest in the subject.  In fact, in a July 24, 2013 letter to the EEOC, nine state attorneys general expressed concern that the EEOC may be creating a new protected class by expanding Title VII protection to criminals, under the pretext of preventing race discrimination.  In addition, they further noted the burden the EEOC is placing on employers by encouraging companies to undertake more individualized assessments when utilizing criminal convictions as an employment disqualifier.  The attorneys general urged the EEOC to reconsider its position on criminal convictions, and to rescind its enforcement guidance. 

It remains to be seen whether or to what extent the EEOC will modify its position regarding criminal conviction policies.  In the meantime, employers may begin to see an increase in EEOC charges alleging race discrimination on the basis of an arrest record or criminal background.  It would behoove employers to evaluate their criminal conviction policies to ensure that such practices are job related and consistent with business necessity. 

According to the EEOC’s guidance, in order to establish that a criminal conviction exclusion is job related and consistent with business necessity under Title VII, the employer must show that the policy “effectively” links specific criminal behavior with the risks inherent in the duties of a particular job or position.  The EEOC set forth two circumstances in which it believes employers will be able to establish job relatedness and business necessity:  1) the employer validates the criminal conduct screen for the specific position pursuant to the Uniform Guidelines on Employee Selection Procedures standards; or 2) the employer develops a targeted screen taking into consideration the nature of the criminal conduct, the time elapsed, and the nature of the specific job, and provides an opportunity for an “individualized assessment” for people excluded by the screen to determine whether the policy was applied appropriately.

The Uniform Guidelines describe three varying approaches to validating employment screens: 1) criterion-related validity studies; 2) content validity studies; or 3) construct validity studies.  However, the Uniform Guidelines also acknowledge that there are circumstances where employers need not utilize such techniques.  In such circumstances, employers should utilize selection practices that are as job related as possible and will lessen or eliminate an adverse impact.

In the absence of a validation study in accordance with the Uniform Guidelines, the EEOC recognizes three factors that employers can use to evaluate how particular criminal behavior may be linked to specific positions. The three factors are: 1) the nature and gravity of the offense or conduct, including the harm caused by the crime; 2) the time that has elapsed since the offense, conduct and/or completion of the sentence; and 3) the nature of the job held or sought, including the job duties and the environment in which the job duties are performed.  In other words, establishing a nexus between the specific crime and the specific job is key.  By applying these factors, employers will be on the path to ensuring that their criminal conviction policies are job related and consistent with business necessity.