Contingent workforce users and other employers must be cautious when conducting criminal background checks and making hiring decisions based on convictions — lest they run afoul of U.S. Equal Employment Opportunity guidance. But two recent EEOC lawsuits brought a backlash from attorneys general in nine states.
The attorneys general asked the EEOC to reconsider the lawsuits in a letter to the agency on July 24.
One lawsuit involves BMW Manufacturing Co. LLC, which the EEOC sued over criminal background checks of third-party contract workers at the automaker’s operations in Spartanburg, S.C. The other lawsuit involved Dollar General.
The EEOC announced the lawsuits in June.
“We believe that these lawsuits and your application of the law, as articulated through your enforcement guidance, are misguided and a quintessential example of gross federal overreach,” according to the letter. “Our states urge you to reconsider your position and these lawsuits.”
The guidance has raised concerns elsewhere as well. For background on the guidance, click here.
Georgia Attorney General Sam Olens, one of the signatories to the recent letter, said the EEOC has gone beyond the confines of the law.
“Businesses may decide for a variety of legitimate reasons that it is not in their best interest to hire people who have been convicted of certain — or any crimes,” Olens said in a press release. “At a time when Georgia businesses are already saddled with a multitude of burdensome regulations, the last thing we need is another federal regulation imposing even more unnecessary requirements.”
The attorneys general’s letter also asks the EEOC to revise its guidance, which asserts that using criminal background checks as a bright-line screening tool in the hiring process will often violate Title VII of the Civil Rights Act.
In addition, the letter argues race discrimination is not the EEOC’s actual concern. The letter outlines the belief that the agency seeks to expand Title VII protection to former criminals.
“We are troubled that your agency’s true purpose may not be the correct enforcement of the law, but rather the illegitimate expansion of Title VII protection to the former criminals,” according to the letter. “This extension, if wise, is a legislative responsibility and should not be done under the guide of racial discrimination.”
They also raise concerns the EEOC guidance could impact state law because it claims precedence over such laws.
Attorneys general signing onto the letter are from Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, West Virginia and Utah.
The BMW lawsuit arose after the company switched third-party logistics suppliers in 2008. BMW ended its contract with UTi Integrates Logistics Inc. — which employed warehouse and distribution workers at BMW’s Spartanburg site. UTi’s employees were required to reapply for their jobs and undergo criminal background checks when BMW brought in a new logistics firm.
The background checks found 88 workers with criminal convictions in violation of BMW’s criminal conviction policy, and 80 percent of those workers were black. The EEOC argued the screen disproportionately impacted black workers. The lawsuit reported that of the 645 former UTi workers for which background checks were performed overall, only 55 percent were black. The lawsuit said workers were denied access to the plant even though they had been at the facility for many years without incident. It said in one instance, a black female was denied work solely based a 1990 misdemeanor conviction for simple assault that was punished by only a $137 fine. The worker had nearly 14 years of service at UTi, it said.
In the Dollar General lawsuit, the EEOC argued the dollar store operator’s policy of background checks for all job offers also had a disparate impact against black applicants. In one instance, a candidate disclosed a six-year-old conviction for possession of a controlled substance, according to the EEOC. Her job offer was revoked because Dollar General policy was to use this type of conviction as a disqualification for 10 years after the conviction. The applicant had worked at another discount retailer as a cashier-stocker for four years. In another instance, Dollar General fired a worker after receiving an incorrect report. Dollar General did not reverse its decision even after the worker advised the store manager of the mistake in the report, the EEOC argued.
Attorney Eric H. Rumbaugh recently covered the use of criminal background checks and staffing firms in the July 2013 issue of Staffing Industry Review magazine. To read the story, click here.