Inside Counsel: Labor: The EEOC's guidance on criminal background checks
On June 11, the U.S. Equal Employment Opportunity Commission (EEOC) filed suit against BMW and Dollar General for violating Title VII of the Civil Rights Act by using criminal background checks that caused a
disproportionate number of African American employees to be fired or screened out from employment.
BMW's challenged policy for screening criminal records had no time limit, as opposed to a typical limit of seven years for reporting convictions. The EEOC said the policy was a "blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the age of convictions, or the nature of the claimant's respective positions."
In the last two decades, there has been an increase in the number of Americans who have been involved with the criminal justice system. According to the EEOC, at the end of 2007, 3.2 percent of all adults in the U.S. were involved in a parole program or were incarcerated. The rates are higher for black and Hispanic men. Understandably, this trend has had an impact on the number of workers who have a criminal record. According to a recent survey reported by the EEOC, a total of 92 percent of employers use some version of a criminal background check with their employees.
The EEOC published a document that employees may use as guidance when contemplating the use of criminal background checks in the application and retention process.
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