When does the use of criminal background checks rise to discrimination?

Major employer settles amid allegations of using criminal background checks to discriminate against African American employees.

A recent case receiving coverage throughout the nation has brought attention to an interesting issue: When does the use of criminal background checks during the employment process result in discrimination?

The case: EEOC versus BMW

In 1994, BMW began implementing a criminal conviction policy that denies access to employees and employees of contractors with certain criminal convictions. The allegations of discrimination arose when employees that worked for BMW through UTi Integrated Logistics, a contracting logistics services company, failed BMW’s criminal conviction policy.

The automobile manufacturer’s 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" while UTi’s policy reviewed conviction that occurred within the previous seven years. UTI ended its contract with BMW in 2008 and employees that wished to stay with BMW had to re-apply with the new contractor. BMW required the new contractor to use its more exclusive criminal conviction policy, which led to the termination of many of these employees. According to the EEOC, 56 African-American employees were discharged due to the policy.

The United States Equal Employment Opportunity Commission (EEOC) filed suit against the BMW manufacturing facility, which is located in South Carolina, stating BMW’s criminal background policy disproportionately screened and fired African American employees from jobs. The agency stated the policy was neither consistent with business necessity nor job related. As a result, the utilization of the policy was discriminatory.

Criminal background checks for employment: The law

The Chair of the EEOC stated in a recent newsroom release addressing the case that the use of arrest and conviction records in employment decisions can be at odds with Title VII. Title VII of the Civil Rights Act of 1964 specifically prohibits discrimination of an applicant based on his or her race. As a result, businesses using criminal background checks that result in a disproportionate exclusion of African-Americans must evaluate whether the policy is a business necessity and job related. If it cannot adequately justify the policy, a case for discrimination likely exists.

The case: Resolution

Ultimately, BMW agreed to pay $1.6 million in restitution and offer jobs to those who were negatively impacted by the policy. The company will also be subject to additional monitoring and reporting requirements.

This case is just one example of the types of discrimination that can be present in the workplace. Remedies are available to those who are victimized by discriminatory practices. Contact an experienced employment discrimination attorney to discuss your options.