On January 5, 2013, Reentry Central posted an article which announced the United States Commission on Civil Rights (USCCR) was seeking comments from the public on criminal background checks, and whether the checks thwart employment opportunities for those with a criminal background, including an arrest, but not a conviction.
The article included the following information provided by Mark Maurer, executive director of The Sentencing Project:
Nearly one in three American adults is arrested by age 23.
Many of those who have been arrested (and thus have a “criminal record” that could appear on a criminal background check) have never been convicted of a crime.
Black workers are disproportionately impacted by criminal background checks, reflecting disparities in the criminal justice system and racial bias among employers. Research has documented that African Americans with no felony convictions are no more likely to receive a callback or job offer as whites with a felony record.
Employment is essential for people who have broken the law and are trying to reenter society. Barring such people from getting a job increases the odds that they will commit another crime.
The bottom line is that people should have the opportunity for employment in jobs for which they are qualified and for which their criminal record is irrelevant. The overly broad use of criminal background checks by employers has a disproportionate impact on people of color.
Calling for new guidelines that limit how employers can use background check information in hiring practices, the Brennan Center stated:
“Although targeted by these discriminatory policies, the formerly incarcerated and communities of color do not suffer alone. All Americans are pulled down into this systemic quagmire. The inability to gain stable, respectable work, or to secure educational opportunities, leads directly to recidivism, reducing public safety. Policies that needlessly restrict a formerly incarcerated person’s ability to work have had the unintended consequence of placing greater fiscal burdens on limited government resources. The loss of so many potential workers has a significant negative impact on the economy at large. Further, stable employment opportunities are one of the pillars upon which crime reduction policies must be constructed. Failing to provide appropriate employment opportunities to those with criminal records will undoubtedly increase crime and incarceration rates and associated costs.” (See Reentry Central January 22, 2013.)
The Equal Employment Opportunity Commission took action against businesses, BMW and Dollar General because they violated Title VII of the Civil Rights Act. The following Press release from EEOC describes why legal action was taken.
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
Press Release 6-11-13
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.
Since 1994, BMW has had a criminal conviction policy that denies facility access to BMW employees and employees of contractors with certain criminal convictions. However, when UTi assigned the claimants to work at the BMW facility, UTi screened the employees according to UTi's criminal conviction policy. UTi's criminal background check limited review to convictions within the prior seven years. BMW's policy has no time limit with regard to convictions. The policy is 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.
In 2008, UTi ended its contract with BMW. During a transitional period, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse. As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the criteria for working at the BMW facility and were subsequently terminated and denied rehire as employees of the new contractor, despite the fact that many of the employees had worked at the BMW facility for years.
In Illinois, the Chicago office of the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected black applicants. That lawsuit charges that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks. Dollar General operates 10,000 stores in 40 states, plus 11 distribution centers. Ninety percent of all Dollar General employees are store clerks who are both stockers and cashiers at the stores.
According to the EEOC, one of the applicants who had filed a charge with EEOC was given a conditional employment offer, although she had disclosed a six-year-old conviction for possession of a controlled substance. Her application also showed that she had previously worked for another discount retailer as a cashier-stocker for four years. Nevertheless, her job offer was allegedly revoked because Dollar General's practice was to use her type of conviction as a disqualification factor for 10 years.
The other applicant who filed an EEOC charge was fired by Dollar General although, according to the EEOC, the conviction records check report about her was wrong - she did not have the felony conviction attributed to her. The EEOC said that although she advised the Dollar General store manager of the mistake in the report, the company did not reverse its decision and her firing stood.
"Title VII of the Civil Rights Act of 1964 prohibits discrimination against job applicants and employees on account of their race," said EEOC Chair Jacqueline A. Berrien. "Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions, the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII."
"The Commission is committed to using public education and informal resolution to address discriminatory hiring practices," said David Lopez, EEOC General Counsel. "When these methods are unsuccessful, the Commission will, if necessary, seek redress from the federal courts and ensure equal opportunity for all. This is the latest in a series of systemic cases the Commission has filed to challenge unlawful hiring practices."
Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation. The EEOC will assert claims of disparate impact, in both cases, against African Americans. The EEOC filed suit in each instance after attempting to resolve the matter through settlement. In all, the Commission will seek back pay, as well as injunctive relief to prevent future discrimination of employees and applicants.
Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP).
On April 25, 2012, the EEOC issued updated enforcement guidance on employer use of arrest and conviction records. The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records. Among other issues, the Reentry Council is working to reduce barriers to employment, so that people with past criminal involvement - after they have been held accountable and paid their dues - can compete for appropriate work opportunities in order to support themselves and their families, pay their taxes, and contribute to the economy.
The EEOC enforces the federal laws prohibiting employment discrimination. More information about the EEOC is available on its website, www.eeoc.gov.
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