EEOC Begins Enforcing 2012 Criminal Background Check Guidance

In mid-June, the EEOC simultaneously filed two lawsuits challenging an employer’s use of criminal background checks to screen out applicants who were convicted of certain felonies and misdemeanors: EEOC v. Dolgencorp LLC d/b/a Dollar General, Case No. 1:13-cv-04307 (N.D. Ill.) and EEOC v. BMW Manufacturing Co., Inc., Case No. 7:13-cv-01583 (D.S.C.) These follow the Commission’s announcement last year of a significant shift in its stance on the use of criminal background checks in the employment process. The Commission views the use of criminal history to screen applicants with suspicion, as data it has relied on shows that exclusion from hire based on criminal history screens out a vastly disproportionate percentage of black applicants, and has a significant disparate impact on Hispanic applicants as well.

These two lawsuits are the first EEOC enforcement actions that rely on the theories and rationale announced in last year’s guidance document. The issues involved are controversial, arraying the apparent disparate impact of the exclusion of former convicts on protected minorities against the employers’ needs to protect their workers, customers and assets.

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