California Labor &
Employment Law Blog

Jun. 18 2013

EEOC Steps Up Enforcement Actions Based on Employer Use of Criminal Background Checks

Topics: Discrimination, Harassment & Retaliation, Employee Hiring, Discipline & Termination, Personnel Policies and Procedures

Employers probably recall that last year the EEOC published guidance on the use of criminal background checks in the hiring process.  This led many to forecast that the EEOC would be stepping up its enforcement efforts in this area.  Well, earlier this month the EEOC filed lawsuits against two different companies, BMW Manufacturing and Dollar General, alleging that their criminal background check policies discriminated against black applicants in violation of Title VII.  According to the lawsuit against BMW, BMW had a policy that barred employment to applicants with certain criminal convictions regardless of how old the conviction was, the nature or gravity of the offense, or the nature of the employment position sought.  The EEOC charged that BMW's policy had a disparate impact on blacks and constituted unlawful employment discrimination.

In the case against Dollar General, the EEOC similarly alleges that Dollar General's criminal conviction policy disparately impacts black applicants.  That lawsuit arose out of two administrative charges filed with the EEOC by rejected applicants.  In one case, the applicant had a six-year old drug conviction.  Dollar General's policy was to consider this type of conviction a bar to employment if the conviction was less than 10 years old.  As such, the applicant was not hired.  In the other case, the applicant's background check revealed a felony conviction but the applicant insisted that the report was wrong. Although she informed Dollar General of the mistake, she still was not hired.  The EEOC is now challenging Dollar General's criminal convictions policy as a whole.  In both cases, the EEOC seeks back pay as well as injunctive relief.  The EEOC's press release regarding these two lawsuits is available here

The EEOC's increased attention and enforcement efforts in this area serve as a reminder to employers of the need to review their criminal background check policies (as well as similar questions on employment applications) to try to ensure the policies pass muster under the EEOC's guidance.  Our prior post on that guidance is available here.  California employers must also be mindful that California has some additional restrictions on the scope of criminal background checks used for employment purposes (e.g. California Labor Code section 432.8, which prohibits employers from considering certain marijuana-related convictions in making employment decisions).  Thus, California employers need to ensure that their policies and procedures comply with both federal EEOC guidance and California law.

About CDF

For over 20 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

> visit primary site

About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
> Contact   > Full Bio   Call 916.361.0991


Carothers DiSante & Freudenberger LLP © 2018

About CDFWhat We DoContact UsAttorney AdvertisingDisclaimer