On Tuesday, June 11th, the Equal Employment Opportunity Commission filed lawsuits against a BMW plant in South Carolina, as well as against discount retailer Dollar General, for criminal background check policies that the commission claims are inherently racist.
Both the BMW plant and Dollar General have requested criminal background checks for their employees – a practice that in itself is not illegal, but which the EEOC says could be used to discriminate against African Americans seeking employment.
In 2009, African American males made up 12 – 13% of the population. However, they were 40.1% of the incarcerated population.
The two lawsuits are the first issued since the EEOC revised guidelines last year, which warned employers away from using overly-broad criminal background checks in such a way that job opportunities for specific populations – such as African American males – would be limited. Although it is important for employers to know the criminal histories of their employees, the EEOC says that it is equally important for those with criminal histories to find jobs.
“There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records,” the EEOC says in an explainer on criminal background checks. “However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”
“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,” said said EEOC Chair Jacqueline A. Berrien.
According to the EEOC, rather than blanket rejecting anyone after a criminal background check turns up a conviction history, the agency recommends that employers give potential applicants “the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.”
EEOC Focuses on Criminal Background Checks at BMW Plant in Spartanburg, SC
The EEOC is particularly focused on the BMW plant in Spartanburg, SC, in which mass firings after criminal background checks have affected nearly 100 former employees.
Originally, the plant’s policy had been to not hire anyone with a criminal record from the past 7 years. However, a new contractor took over the plant, ordered a new round of criminal background checks, and fired anyone with a criminal history from any year. Of the 88 employees who were fired, 70 were African American. Some had worked at the plant for more than 10 years.
BMW spokeswoman Sky Foster said the company “believes that it has complied with the letter and spirit of the law and will defend itself against the EEOC’s allegations of race discrimination.”
The Strom Law Firm Fights Discrimination Through Criminal Background Checks in South Carolina
South Carolina is an at-will employment state, meaning that you have the right to quit your job at any time for any reason or no reason at all; likewise, your employer can hire or fire you for any reason or no reason at all. However, with federal agencies like the Equal Employment Opportunity Commission, employees have protection against discrimination.
Unlawful discrimination claims, including through broad criminal background checks, are difficult to prove. There are certain procedural steps that you must take to assert your claim, making it critical that you contact a South Carolina employment discrimination attorney to ensure that your rights are protected.
If you believe that a potential employer has used a criminal background check to unlawfully discriminate against you as a candidate, the attorneys at the Strom Law Firm can help. We offer free, confidential consultations to discuss the facts of your case, so do not hesitate to contact us. 803.252.4800