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On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on the use of criminal background checks in making employment decisions. The guidance clarified the EEOC’s position that blanket disqualifications of applicants or employees based on criminal convictions violates Title VII of the Civil Rights Act of 1964. The EEOC has sent a clear signal that it is serious about criminal background checks, filing two lawsuits for allegedly discriminatory practices.

The EEOC sued Dollar General in federal court in Illinois after two applicants filed Charges of Discrimination based on the company’s termination of their employment. One employee had her job offer revoked shortly after she began working because of a six-year-old felony conviction for possession of a controlled substance. The other employee was fired based on an erroneous report of a conviction and not rehired after the manager was informed the report was incorrect. The EEOC alleges Dollar General uses a formula including the crime and the time since it was committed, but the agency argues the policy is illegal because it is not sufficiently job-related and does not consider individual circumstances.

The EEOC also sued BMW Manufacturing Co., LLC in federal court in South Carolina. BMW changed logistics contractors, which resulted in a large number of contract workers having to reapply to keep their positions. Sixty-nine workers who had been working at the facility in South Carolina were terminated or denied rehire after new criminal background checks were run, even though many of them had been working at the facility for years. Again, the EEOC alleged that the disqualification of these workers from employment consideration was not sufficiently job-related and did not consider the individual circumstances of each worker and his or her conviction history.

Under the EEOC’s new guidance, an employer may lawfully exclude an applicant based on a conviction if the employer can show the conduct, its dangers, and the risks inherent in the duties of a particular position are sufficiently related. The employer should consider:

These new lawsuits against Dollar General and BMW are likely only the first in a new wave of actions by the EEOC. Employers should consider limiting conviction inquiries in job applications to convictions that are job related for the position, and before denying employment or terminating an employee based on a conviction, employers should carefully consider whether the decision is sufficiently job-related. Of course, employers should not ask about arrests in their job applications or consider them when making hiring decisions.

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