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The EEOC: I Think They Mean it
July 08, 2013 posted by Steve Brownstein
Back in the days when I was lucky enough to avoid a long rap sheet, my Father would often verbally take me to the woodshed. After he was finished, if he was particularly angry, I could count on an emphatic addition after about 5 seconds of silence: “And I MEAN it.”
The EEOC has recently shown that they mean it when it comes to employer use of criminal record checks. In 2006 there were less than 50 active investigations. Last year there were nearly 600. On June 11th, the EEOC issued a press release that read in part:
EEOC Files Suit Against Two Employers for Use of Criminal Background Checks
BMW Fired and Denied Hire to Class of Employees Who Worked Successfully for Years; Dollar General Disproportionately Excluded African Americans From Hire
WASHINGTON - A BMW manufacturing facility in South Carolina, and the largest small-box discount retailer in the United States violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background policy that resulted in employees being fired and others being screened out for employment, the U.S. Equal Employment Opportunity Commission alleged in two lawsuits filed today.
The EEOC's Charlotte district office filed suit in U.S. District Court of South Carolina, Spartanburg Division against BMW Manufacturing Co., LLC, and a separate suit was filed in Chicago against Dolgencorp, doing business as Dollar General.
In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. The claimants were employees of UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at the South Carolina facility. The logistics services included warehouse and distribution assistance, transportation services and manufacturing support.
If you are a background screening company, you may have received (or will soon) some concerns from your employer clients. From CNN, to the Wall Street Journal to local newspapers, the EEOC actions have been big news.
It may be time to go back to the basics: employer use of criminal records is not prohibited. In fact, court after court has imposed an obligation on employers to perform due diligence on employee applicants under the negligent hiring doctrine. The theory says that employers have a duty to assess the nature of the job, its degree of risk to third parties, and then perform a reasonable background investigation to ensure the applicant is competent and fit for the position for which they are being considered. You don’t hire a day care worker without performing a criminal record search to ensure you don’t hire a convicted pedophile is the most common example. But there have been many more that are less obvious, from truck drivers, to furniture deliverymen, to apartment handymen to security guards. You don’t stop driving to work because of the accidents you read about—but you may endeavor to drive more carefully.
In a recent letter to the editor in the Wall Street Journal, Peggy Mastroianni, Legal Counsel for the EEOC in Washington, DC wrote a letter with the headline “There's No Peril in Following EEOC's Hiring Guidance.” Admittedly, “following” may be in the eye of the beholder, but we do know there is peril for employers that hire blindly.
EEOC scrutiny of employer use of criminal records is not new. What is new is the level of enforcement and the updated guidance issued last year by the EEOC. It will behoove us as an industry to ensure employers keep their eye on the ball regarding the need for due diligence and assist them in being aware of the new guidance.
The new guidance can be found here: http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm
Derek Hinton is President of CRAzoom (www.crazoom.com) a company providing complete accreditation assistance to CRAs.
