Much like recent activity against violations of the Genetic Information Nondiscrimination Act (GINA), with one lawsuit settled and another pending, the Equal Employment Opportunity Commission (EEOC) has opened up a new legal front, lodging two lawsuits against companies accused of discrimination based on criminal background checks.
In 2012, the commission issued guidelines regarding the use of criminal background checks and their potential to create a disparate impact on minorities in hiring.
Now, the EEOC has added some urgency to following those guidelines with two June lawsuits, one against Dollar General and another against BMW, certainly not small targets on the employment front. In both cases, the lawsuits allege discrimination against African-Americans based on criminal background checks, in Dollar General's case discrimination during the hiring process, and in BMW's case discrimination in terminating employees based on criminal background checks.
The legal actions followed the EEOC's announced intention to go after "system violations" rather than wait for individuals to lodge complaints. The shift in focus was telegraphed in January 2013 when the EEOC issued its Strategic Enforcement Plan.
The EEOC doesn't outrightly forbid criminal background checks but allows for those that are job relevant and consistent with business necessity. An employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought when using criminal background information in employment decisions.
Both Dollar General and BMW have denied the allegations and vowed to fight the charges.