EEOC Alleges Criminal Background Check Policy of Discount Retailer Violates Civil Rights Act of 1964

The U.S. Equal Employment Opportunity Commission (EEOC) – the agency that enforces federal laws prohibiting employment discrimination – has alleged that the criminal background check policy of Dollar General Corp., one of the largest discount retailers in the U.S. with over 10,000 stores in 40 states, has a ‘disparate impact’ on African-American job candidates and employees and violates of the Civil Rights Act of 1964. A full report on the story, a prime example of how criminal background checks by employers are coming under greater scrutiny by the EEOC, is available on the Nashville Business Journal website at: http://www.bizjournals.com/nashville/news/2012/09/10/dollar-generals-use-of-criminal.html.

According to a recent SEC filing by the company, the employer was notified by the EEOC in September 2011 of a cause finding alleging the company’s “criminal background check policy, which excludes from employment individuals with certain criminal convictions for specified periods, has a disparate impact on African-American candidates and employees in violation of Title VII of the Civil Rights Act of 1964, as amended.” The company disputes the allegations and in its SEC filing stated the “criminal background check process is both lawful and necessary to a safe environment for its employees and customers.” The SEC filing is available at: http://edgar.sec.gov/Archives/edgar/data/29534/000110465912061560/a12-15029_110q.htm. (It is also important to note that the mere fact that an allegation is made is not proof of anything.)

The EEOC allegations are part of an ongoing emphasis by the EEOC on the use of criminal records. In April 2012, the EEOC voted to approve updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The complete text of the updated EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

The EEOC enforces Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination based on race, color, religion, sex, or national origin. While the new EEOC Guidance is not a rule or regulation and therefore does not have the force or effect of law, the document is important for employers since it is the EEOC’s position on enforcement of Title VII in regarding criminal records. The EEOC Guidance discusses ‘disparate impact’ analysis under Title VII:

  • Disparate impact liability: An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity.

Attorney Lester Rosen, Founder and CEO of background check firm Employment Screening Resources (ESR) and a noted safe hiring expert, says that under a ‘disparate impact’ approach, “employers can be liable even if they did not subjectively intend for any discrimination to occur,” since it is not an issue of what the employer intended, but rather what actually resulted from the employer’s policies and procedures.

“Even with increased regulations, employers must still do background checks to ensure that new hires are qualified, capable, and free from unacceptable risk,” says Rosen, who has written a new whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance’ to help employers use criminal background checks in a legally compliant way. The complimentary whitepaper is undergoing a controlled release and will be available to employers interested in screening by emailing EEOCwhitepaper@esrcheck.com. Rosen covers several topics in the whitepaper, including:

  • History of EEOC Criminal Record Guidance
  • Arrest Records vs. Conviction Records
  • Disparate Treatment vs. Disparate Impact
  • Federal, State & Local Laws and the EEOC Guidance
  • “Ban the Box” and Limited Questions about Past Conduct
  • Factors Added to Three Part “Green” Test
  • Notifying Applicants of Individualized Assessments
  • EEOC Recommended Best Practices for Employers
  • Criticism of the New EEOC Guidance
  • EEOC: The Good, The May Be Good & The Impossible
  • Potential Employer Responses to New EEOC Guidance

“The purpose of this whitepaper is to go beyond simply repeating the EEOC Guidance language and instead give real world examples and suggestions on what employers should do now to remain in compliance while performing criminal background checks,” says Rosen, who just completed an updated second edition of his comprehensive book on screening, ‘The Safe Hiring Manual,’ that will be published in October 2012.  “The updated EEOC Guidance requires some additional processes to be incorporated into policies and procedures, and while change may be a burden, these additional requirements can be effectively managed.” For more information about the new book, which includes an entire chapter devoted only to the new EEOC Guidance, visit: http://www.esrcheck.com/SafeHiringManual.php.

Criminal background checks by employers have come under greater scrutiny by the EEOC recently. As reported on the ESR News blog, a major beverage company agreed to pay $3.13 million and make major policy changes by providing job offers and training to resolve an EEOC charge of nationwide hiring discrimination against African Americans with criminal background checks. The blog is available at: http://www.esrcheck.com/wordpress/2012/01/13/pepsi-pays-3-million-after-eeoc-finds-hiring-discrimination-against-african-americans-with-background-check-policy/.

For information about criminal background checks as part of a Safe Hiring Program, visit Employment Screening Resources (ESR) – ‘The Background Check Authority’ and a nationwide background screening firm accredited by The National Association of Professional Background Screeners (NAPBS®) – at http://www.esrcheck.com, call Toll Free 888.999.4474, or email customerservice@esrcheck.com.

Sources:

http://www.bizjournals.com/nashville/news/2012/09/10/dollar-generals-use-of-criminal.html

http://edgar.sec.gov/Archives/edgar/data/29534/000110465912061560/a12-15029_110q.htm

About Employment Screening Resources (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more, visit http://www.esrcheck.com, call 888.999.4474, or email customerservice@esrcheck.com.

About ESR News:

The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.