Two suits by EEOC follow guidance on vetting applicants

By: Steve Lash Daily Record Legal Affairs Writer, The Daily Record, June 18, 2013

WASHINGTON - The U.S. Equal Employment Opportunity Commission's lawsuits against two companies alleging unlawful and discriminatory use of criminal background checks in their hiring policies should serve as a reminder to employers to tread carefully.

"Do not have criminal convictions as a uniform bar to employment," said attorney Patrick M. Pilachowski, who advises employers. "It's just asking for trouble."

Rather, employers should look to the "nature and gravity" of a job candidate's criminal offenses, how much time has passed and the nature of the job being sought in deciding how much weight to give the applicant's past crimes, he said.

For example, a conviction for embezzlement might not be relevant if an applicant is seeking a groundskeeping job, but would be grounds for disqualifying a would-be bookkeeper, added Pilachowksi, of Shawe Rosenthal LLP in Baltimore.

His comments followed the EEOC's filing of two lawsuits last week. In the first, the agency claims that BMW Manufacturing Co. LLC's use of criminal background check information disproportionately screened out black contractors at the auto manufacturer's South Carolina facility.

For seven years, the company has had a policy of denying facility access to employees and contractors with certain criminal convictions, regardless of time elapsed since the convictions or the nature of the worker's duties.

That policy served no justifiable job-related purpose and was not a business necessity, the EEOC alleged.

The suit stemmed from complaints from contract employees who had previously worked at the facility, but were denied access after new criminal background checks uncovered criminal convictions.

In the second suit filed June 11, the agency claims that retailer Dollar General's background check policy had a disparate impact on black job applicants nationwide.

The lawsuit stems from EEOC complaints brought by applicants who claimed they were denied jobs due to background check results that were either incorrect or that reflected past charges with no relation to the store-clerk positions for which they applied.

The lawsuits are the EEOC's first on the use of criminal background check information since the agency issued guidance on the topic last year.

That guidance underscored the fact that, while Title VII does not prohibit employers' use of criminal background checks, employers can run afoul of the law if the use of such checks leads to systemic discrimination based on race, color, national origin, religion or sex.

The guidance said that screening applicants on the basis of criminal records has a disparate impact on minorities, because they are statistically more likely to have an arrest or conviction record than white applicants.

Employers should therefore base hiring decisions on an "individualized assessment" of an applicant's fitness for the job, and an applicant's criminal record is relevant only if the conduct involved is "job related for the position in question," the guidance stated.

Negligent hiring claims

Pilachowski, noting the guidance's job-relatedness provision, said a conviction for a violent crime would disqualify an applicant for work inside a person's home.

"You don't want to hire a convicted rapist to do that [work] or else you're staring down the barrel of a negligent hiring lawsuit," he said.

EEOC Chair Jacqueline A. Berrien said employers have long been on notice that discriminatory use of criminal background checks could run afoul of Title VII.

"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," Berrien said in a statement announcing the lawsuits.

Rockville lawyer James E. Rubin, who represents employees in job bias cases, predicted that cases alleging disparate-impact discrimination based on criminal records will have to be pursued by EEOC and state equal employment agencies, rather than by private attorneys.

The private bar is cautious of devoting time and expense to novel theories of employer liability, particularly with plaintiffs whose criminal records might alienate judges and juries, said Rubin, a solo practitioner.

"They're not very sympathetic cases," he said. "I don't think many plaintiff-side attorneys are going to be taking them."

When the guidance was issued in April 2012, attorneys for employers expressed concern that potential EEOC liability would discourage their clients from conducting the criminal background checks necessary to protect their businesses from untrustworthy employees.

The EEOC's filing of the two lawsuits might add to those concerns, said attorney Linda Hitt Thatcher, of the Thatcher Law Firm in Greenbelt.

"The commission is asking the employers to divorce themselves from the real world" by discouraging background checks, she said Tuesday. "Trustworthiness is part of any job, whether you're working on an assembly line, mowing the lawn or working in a bank."

Attorney Cole Dowsley said that although the EEOC's guidance stresses that any use of criminal background information must have a job-related purpose, it remains unclear what employers will have to prove for their hiring policies to pass muster with the agency if they do screen applicants' and employees' criminal backgrounds.

"It will be interesting to see how these cases play out because right now there is a lot of uncertainty and risk involved in using background checks," said Dowsley, of Thompson Burton PLLC in Franklin, Tenn.

The BMW and Dollar General suits "will be the test cases," Dowsley added.

Kimberly Atkins writes for Lawyers USA, a sister publication of The Daily Record. An earlier version of this story appeared on the Lawyers USA website.