The Federal Government Agency given the responsibility of enforcing U.S. Discrimination laws, the Equal Employment Opportunity Commission, is bringing the hammer down on companies that discriminate against employees because of positive criminal background checks. This matters to us because many of our clients get fired or can not get hired because of their Georgia DUI convictions. The EEOC has sued BMW in South Carolina and Dollar General Stores in Illinois. In the BMW case, BMW’s policy has no time limit about convictions. Their policy was a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions. After the contract of a subcontractor was terminated, its employees who had been working at the BMW facility were offered jobs subject to a criminal background check. After the background checks were run many employees who had worked at the factory without incident for years were fired without any questions. This violated federal discrimination law so the EEOC sued.

In the Dollar General case, according to the EEOC, one of the applicants who had filed a charge with EEOC was given a conditional employment offer after disclosing a six-year-old conviction for possession of a controlled substance.  Her application also showed that she had previously worked for another discount retailer as a cashier-stocker for four years.  Nevertheless, her job offer was allegedly revoked because Dollar General’s practice was to use her type of conviction as a disqualification factor for 10 years. The other applicant who filed an EEOC charge was fired by Dollar General although, according to the EEOC, the conviction records check report about her was wrong. She did not have a felony conviction.  The EEOC said that although she advised the Dollar General store manager of the mistake in the report, the company did not reverse its decision and her firing stood. This was illegal for federal discrimination laws.

 African Americans and Hispanics also are incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 White men (5.9% of the White men in the U.S.) is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged.69 This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. For African American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%).  Based on a state-by-state examination of incarceration rates in 2005, African Americans were incarcerated at a rate 5.6 times higher than Whites, and 7 states had a Black-to-White ratio of incarceration that was 10 to1.  In 2010, Black men had an imprisonment rate that was nearly 7 times higher than White men and almost 3 times higher than Hispanic men. National data, such as that cited above, supports a finding that criminal record exclusions have a disparate impact based on race and national origin and violate federal discrimination laws.

In a case involving a criminal record exclusion, the Eighth Circuit in its 1975 Green v. Missouri Pacific Railroad decision, held that it was discriminatory under Title VII for an employer to “follow the policy of disqualifying for employment any applicant with a conviction for any crime other than a minor traffic offense.” The Eighth Circuit identified three factors (the “Green factors”) that were relevant to assessing whether an exclusion is a job related to the position in question and consistent with business necessity:

Second, an employer’s criminal background check must establish what gravity of offense will prevent employment. To establish that a record of criminal conviction is job-related and consistent with business necessity under Title VII, the employer needs to show that the policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.

Two circumstances in which the EEOC believes employers will consistently meet the “job related and consistent with business necessity” defense are as follows:

(1)The employer validates the criminal conduct screen for the position in question per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards (if data about criminal conduct as related to subsequent work performance is available and such validation is possible); or

(2) The employer develops a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job (the three Green factors), and then provides an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity.

The individualized assessment would consist of notice to the individual that he has been screened out because of a criminal conviction; an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances; and consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job-related and consistent with business necessity.

Depending on the facts and circumstances, an employer may be able to justify a targeted criminal records screen solely under the Green factors. Such a screen would need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question. Title VII thus does not necessarily require individualized assessment in all circumstances. However, the use of individualized assessments can help employers avoid Title VII liability by allowing them to consider more complete information on individual applicants or employees, as part of a policy that is job-related and consistent with business necessity.

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