The U.S. Equal Opportunity Employment Commission (EEOC) filed lawsuits on Tuesday alleging that automaker BMW and budget grocery store chain Family Dollar discriminated against African American employees and applicants by denying them work based upon the results of criminal background checks.
The agency said in an advisory that while background checks themselves are not racist, they way they were applied -- without individual consideration for each case -- is.
In one case, a 14-year employee of a BMW facility in South Carolina was fired over a misdemeanor that was on the books for more than 20 years. In another, an applicant to Dollar General disclosed a drug arrest six years earlier and was offered the job, only to see it revoked once the criminal background check went through. A third complaint alleged that Dollar General rejected an applicant based upon inaccurate information contained in a background check and stood by the decision even after the record was corrected.
More than 90 percent of employers in the U.S. rely on criminal background and credit checks to screen employees, The Wall Street Journal noted. The EEOC recommends that employers not solely rely upon the data from the background checks, and that consideration be given to individual workers and applicants, along with the nature of their crime and how long ago it occurred.
According to the EEOC's 2012 guidelines, employers have to watch out for biased statements about workers or applicants by their hiring managers, committing inconsistencies in the hiring process, and any major racial imbalance in their workforce statistics, or they could be in violation of the law.
For criminal background checks, universal application through policy without concern for individual employees or applicants can run afoul of the Civil Rights Act. Specifically, Title VII of the Civil Rights Act prohibits employers from discriminating against employees on the basis of race. Due to the racial skews apparent in drug war arrest statistics --particularly for marijuana offenses, where non-whites are 400 percent more likely to have been arrested -- universal application of background check policies affects African Americans far more than it does whites.
This trend has gone to such extremes that Princeton sociologist Devah Pager found in a 2003 study that black offenders are "less than half as likely" to get a job than white offenders, and even black non-offenders "fall behind" whites with felony records.
"Title VII of the Civil Rights Act of 1964 prohibits discrimination against job applicants and employees on account of their race," EEOC Chairwoman Jacqueline A. Berrien said in prepared text. "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."
According to the National Employment Law Project, Minnesota, Massachusetts, New Mexico, Connecticut and Colorado -- along with about 40 cities and counties around the nation -- have adopted "ban the box" laws that prohibit employers from asking applicants before a job has been offered whether they've committed felony crimes.
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