EEOC Sues for Discriminatory Use of Criminal Background Checks

The federal Equal Employment Opportunity Commission announced yesterday that it has filed two lawsuits, against BMW and Dollar General, for discriminatory use of criminal background checks to terminate employees or refuse to hire applicants. The EEOC is claiming that both companies used blanket exclusions or other across-the-board policies concerning criminal convictions, and that these policies tended to disproportionately affect African American applicants (i.e., the policies had a "disparate impact" on African Americans). Federal law does not protect individuals with criminal convictions or arrest records from discrimination, per se, so background checks only run afoul of the law if they result in (provable) discrimination. For example, screening out applicants with arrest records often has a disparate impact against blacks, who are disproportionately likely to be arrested, especially for low level crimes. For example, nationwide, blacks are 3.6 times more likely to be arrested for marijuana-related offenses than whites, despite the fact that government surveys show whites smoking marijuana at higher rates than blacks.

The law in New York State, however, is substantially more protective than federal law of people with criminal records. Employers in New York aren't allowed to ask applicants about arrests that don't result in conviction. Employers with more than 10 employees may only consider conviction records where the conviction has a "direct relationship" to the job in question, or where the applicant poses a real risk to property or personal safety.