May 23, 2022

Volume XII, Number 143

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May 20, 2022

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Adding Bite To Its Bark: Equal Employment Opportunity Commission (EEOC) Files First Lawsuits Since Its Updated Guidance On Criminal Background Checks

On April 25, 2012, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on the use of criminal background checks in making employment decisions.  The guidance clarified the EEOC’s position that blanket disqualifications of applicants or employees based on criminal convictions violates Title VII of the Civil Rights Act of 1964.  The EEOC has sent a clear signal that it is serious about criminal background checks, filing two lawsuits for allegedly discriminatory practices.

The EEOC sued Dollar General in federal court in Illinois after two applicants filed Charges of Discrimination based on the company’s termination of their employment.  One employee had her job offer revoked shortly after she began working because of a six-year-old felony conviction for possession of a controlled substance.  The other employee was fired based on an erroneous report of a conviction and not rehired after the manager was informed the report was incorrect.  The EEOC alleges Dollar General uses a formula including the crime and the time since it was committed, but the agency argues the policy is illegal because it is not sufficiently job-related and does not consider individual circumstances.

The EEOC also sued BMW Manufacturing Co., LLC in federal court in South Carolina.  BMW changed logistics contractors, which resulted in a large number of contract workers having to reapply to keep their positions.  Sixty-nine workers who had been working at the facility in South Carolina were terminated or denied rehire after new criminal background checks were run, even though many of them had been working at the facility for years.   Again, the EEOC alleged that the disqualification of these workers from employment consideration was not sufficiently job-related and did not consider the individual circumstances of each worker and his or her conviction history.

Under the EEOC’s new guidance, an employer may lawfully exclude an applicant based on a conviction if the employer can show the conduct, its dangers, and the risks inherent in the duties of a particular position are sufficiently related.  The employer should consider:

  • The nature and gravity of the conviction;
  • The time that has passed since the offense, conduct, and/or completion of the sentence; and
  • The nature of the job held or sought.

These new lawsuits against Dollar General and BMW are likely only the first in a new wave of actions by the EEOC.  Employers should consider limiting conviction inquiries in job applications to convictions that are job related for the position, and before denying employment or terminating an employee based on a conviction, employers should carefully consider whether the decision is sufficiently job-related.  Of course, employers should not ask about arrests in their job applications or consider them when making hiring decisions.

© 2022 Poyner Spruill LLP. All rights reserved.National Law Review, Volume III, Number 181
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About this Author

Kevin M. Ceglowski, Employment and Labor Lawyer, Poyner Spruill, Law Firm
Partner

Kevin represents employers in many areas of labor and employment law, including race, age, gender, religion, national original, and disability employment discrimination claims, wrongful discharge claims, and wage and hour claims. He defends clients before administrative agencies such as the Equal Employment Opportunity Commission, the Department of Labor, and the North Carolina Employment Security Commission, in state and federal courts, and in arbitrations. Kevin also provides guidance to management to ensure employment practices are in full compliance with all...

919-783-2853
David L. Woodard, Employment Litigation Attorney, Poyner Spruill, Law firm
Partner

David practices in the area of employment litigation.  He regularly advises and defends clients in race, age, disability and sex discrimination and harassment cases; reviews handbooks and termination issues; and provides compliance advice on matters of employment law.

Representative Experience

McNeil v. Scotland County - Obtained summary judgment for employer where plaintiff alleged race discrimination and retaliation in violation of Title VII of the Civil Rights Act as well as violation of the Americans...

919-783-2854
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