Written By ESR News Blog Editor Thomas Ahearn
In October of 2019, Dollar General agreed to pay $6 million to settle a lawsuit filed in 2013 by the U.S. Equal Employment Opportunity Commission (EEOC) – the federal agency enforcing laws prohibiting employment discrimination – that claimed the use of criminal history by the discount retailer when hiring violated Title VII of the Civil Rights Act of 1964 due to its disparate impact on black job applicants.
According to the Consent Decree filed in the United States Court for the Northern District of Illinois Eastern Division, Dollar General subjected black applicants and conditional hires to discrimination by using a selection criterion and process for hiring – specifically criminal conviction history – “that has a disparate impact on Blacks, is not job-related, and is not justified by business necessity.”
In addition to the monetary settlement, Dollar General agreed to retain a “criminal history consultant” to evaluate the use of criminal conviction history in hiring decisions and to make recommendations for the consideration of criminal history in hiring decisions by Dollar General to ensure that Dollar General’s use of criminal history in hiring decisions is job-related and consistent with business necessity.
Dollar General – which denied the allegations – also will not discourage applicants with criminal histories from applying for employment, train managers to not discourage applicants with criminal histories, and have a reconsideration process for applicants who fail the criminal history background check. The Consent Decree is at U.S. Equal Employment Commission v. Dolgencorp, LLC, No. 13-cv-4307.
In April of 2012, the EEOC issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964” that recommended if employers ask about criminal convictions that the “inquiries be limited to convictions for which exclusion would be job-related for the position in question and consistent with business necessity.”
The EEOC enforces Title VII, which makes it illegal to discriminate against a person on the basis of race, color, religion, sex, or national origin. An employer may violate Title VII if its policy has a “disparate impact” of disproportionately screening out a Title VII-protected group without demonstrating the policy is job related for the position in question and consistent with “business necessity.”
In cases involving a criminal history exclusion, the ruling in Green v. Missouri Pacific Railroad held that the three “Green factors” relevant to assessing whether an exclusion was job related for the position in question and consistent with business necessity were the nature and gravity of the offense, the time passed since the offense or completion of the sentence, and the nature of the job held or sought.
The use of criminal history when hiring can be costly for employers that do not follow EEOC guidance and Title VII protections. In April of 2018, Target Corporation agreed to pay $3.7 million to settle a class action lawsuit to resolve allegations that the retailer’s overly broad and outdated criminal background check policy discriminated against African-American and Latino job applicants.
In October of 2018, black and Latino former drivers for Amazon filed a class action lawsuit that claimed the online retailer’s background check policy discriminated against them and resulted in their firing. The former drivers claimed Amazon implemented an overly strict background check policy that uncovered old and minor offenses and caused a disproportionate number of blacks and Latinos to be fired.
In 2013, a group of national civil and workers’ rights organizations released a report entitled “Best Practice Standards: The Proper Use of Criminal Records in Hiring” that addressed the use of criminal records by employers during background checks. Attorney Lester Rosen, founder and chief executive officer (CEO) of Employment Screening Resources® (ESR), helped develop these best practice standards.
Rosen also wrote a complimentary white paper entitled “Practical Steps Employers Can Take to Comply with the EEOC Criminal Record Guidance” that gives examples on what employers should do to remain in compliance with EEOC Guidance when performing criminal background checks. ESR also offers a proprietary EEOC Compliance Toolkit that provides a set of software tools available only to ESR clients.
Employment Screening Resources® (ESR) – a leading global background check provider – is accredited by the Professional Background Screening Association (PBSA), undergoes annual SOC 2® audits, was named 2018 HRO Today Magazine’s Baker’s Dozen for Top Pre-Employment Screening Service, and won the 2018 Tektonic Award for background screening technology. To learn more, visit www.esrcheck.com.
NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.
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