The government has filed complaints gainst automaker BMW and discount retailer Dollar General, claiming the two companies’ criminal-screening policies have disproportionately denied jobs to blacks.
The Equal Employment Opportunity Commission said it brought the complaints under the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin, after the agency and companies could not reach a settlement.
The EEOC said it will seek back pay for affected employees and a court order forcing the companies to end what it calls unlawful hiring practices.
“BMW 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 automaker told The Atlanta Journal-Constitution in a statement Tuesday. A spokesman declined further comment.
Efforts to reach Dollar General were unsuccessful.
Charles Shanor, an Emory University law professor and expert on employment discrimination cases, said the government is aggressively targeting employment policies that are overly broad when it comes to criminal convictions.
EEOC complaints could set up legal cases that set new boundaries, he said.
“Policies that are covering too many crimes for too many years with respect to jobs where criminal convictions are not directly relevant to the jobs would be challenged under the ‘disparate impact theory’,” Shanor said. The theory holds that a policy may not appear to be discriminatory on its face, but may be discriminatory when applied.
The EEOC said blacks, who are disproportionately represented in criminal arrests and convictions, are more likely to lose a job due to criminal background checks. In April 2012, the agency revised its guidelines and advised employers that under certain circumstances, their reliance on criminal records to deny employment could be at odds with Title VII.
In the case of BMW, the EEOC filed a complaint against the automaker’s plant in the Greenville-Spartanburg area after a new logistics contractor refused to rehire several black employees who had worked at the plant under a previous contractor. The new company cited a BMW policy that denies plant access for certain criminal convictions, regardless of when the convictions occurred, the EEOC said.
Since the BMW policy has no time limit on convictions, the EEOC said BMW’s policy “is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants’ respective positions.”
In Dollar General’s case, the EEOC said all of the retailers’ job offers are conditional and based on the outcome of criminal background checks, which disproportionately disqualifies blacks. The retailer has 10,000 stores in 40 states, including Georgia, and 11 distribution centers.
The EEOC only gave examples of instances where blacks who applied at Dollar General were excluded. One prospective black applicant who had disclosed a 6-year-old drug conviction had a conditional offer revoked because of Dollar General’s policy to disqualify applicants with such convictions for 10 years. Another black worker was fired even though a felony conviction that turned up during a background check turned out to be untrue, the EEOC said.
The EEOC said employers will have fewer problems if they use some form of individualized assessment, such as considering the nature of the crime, the time elapsed and the nature of the job before disqualifying an applicant or firing a worker.