BMW to Pay $1.6 Million to Settle EEOC Criminal Background Check Lawsuit

Written By ESR News Blog Editor Thomas Ahearn

BMW Manufacturing Co., LLC (BMW) will pay $1.6 million and provide job opportunities to the alleged victims of race discrimination to resolve a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) that claimed BMW’s criminal record background check policy disproportionately affected African-American workers, according to a press release from the EEOC.

The U.S. District Court for the District of South Carolina entered a consent decree ordering BMW to pay $1.6 million to resolve the litigation and two pending charges related to the company’s previous criminal conviction records guidelines filed with EEOC. In addition to the monetary relief:

• BMW will offer employment opportunities to the discharged workers in the suit and up to 90 African-American applicants who BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines.
• BMW will provide training on using criminal history screening in a way consistent with Title VII.
• BMW will be subject to reporting and monitoring requirements for the term of the consent decree.

The lawsuit filed by the EEOC Charlotte District Office claimed that BMW discriminated against African-American logistics workers at a South Carolina facility by excluding these workers from employment at a disproportionate rate when the company’s new logistics contractor applied BMW’s criminal conviction records guidelines during background checks performed on incumbent BMW logistics employees.

The complaint alleged that in 2008 when BMW switched logistics contractors at a production facility in Spartanburg, S.C., the new contractor was required to perform a criminal background checks on all existing logistics employees who re-applied to continue working in their positions at BMW using criminal conviction records guidelines excluding all persons with certain criminal convictions from employment.

Approximately 100 incumbent logistics workers did not pass the criminal background checks, and the EEOC alleged that 80 percent of the incumbent workers at the facility disqualified from employment were African-American. BMW’s criminal conviction records guidelines did not consider how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony.

Following an investigation, EEOC filed a lawsuit alleging that African-Americans were disproportionately disqualified from employment as a result of BMW’s criminal conviction records guidelines. EEOC sought relief for 56 African-Americans who were discharged. BMW has since voluntarily changed its guidelines. The EEOC press release is available at http://www.eeoc.gov/eeoc/newsroom/release/9-8-15.cfm.

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job related and consistent with a business necessity,” said P. David Lopez, EEOC’s General Counsel.

On April 25, 2012, the EEOC – the agency enforcing federal laws against employment discrimination – issued 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 updated EEOC Guidance for criminal records is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

According to an article about the case written by Montserrat Miller, a partner at the law firm of Arnall Golden Gregory LLP, one of the key requirements that the consent decree lays out for BMW and its logistics provider is that they must “conduct an individualized assessment if they seek to disqualify any job applicant based on criminal history.” Individualized assessments are included in the EEOC Guidance.

Miller writes that they “must provide written notice to the job applicant describing the criminal history which is at issue and an offer to the applicant to explain the conviction and their appropriateness for employment.” This notice “must afford the job applicant of period of at least 21 days during which time they can contact BMW or the logistics provider before an adverse employment decision is finalized.”

Miller continues: “The last two points are noteworthy because (a) they are mandating that BMW conduct an individualized assessment each time criminal history is considered and (b) the 21-day timeframe.  The EEOC enforcement guidance on the use of criminal records guidance does not mandate individualized assessments.” The complete article by Miller is available here.

ESR Helps Employers Comply with EEOC Guidance on Criminal Records

Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – helps employers comply with U.S. Equal Employment Opportunity Commission (EEOC) Guidance on criminal records. ESR offers free one click adverse action and an EEOC “tool kit” to all of our clients to help them understand the sometimes confusing guidance by the EEOC and in almost 20 years has never been involved in any litigation.  ESR also offers employers links to EEOC resources, blogs about the EEOC, and the whitepaper ‘Practical Steps Employers Can Take to Comply with EEOC Criminal Record Guidance’. To learn more about ESR, call toll free 888.999.4474 or visit https://www.esrcheck.com/sales/.

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