There are many clear benefits in performing background checks, such as screening out candidates who give incomplete or inaccurate information on their application, or are not suitable for the job due to relevant criminal convictions. However, notwithstanding these benefits, some employer background checks have been challenged as discriminatory under Title VII of the Civil Rights Act of 1964 because they disproportionately screen out particular racial, ethnic or gender groups.
A case in point is the U.S. Equal Employment Opportunity Commission’s (“EEOC”) lawsuit against BMW Manufacturing Co. LLC (“BMW”) claiming that BMW’s criminal background check policy is discriminatory. In this ongoing litigation, the EEOC has questioned the legality of BMW’s policy because it allegedly has resulted in the termination of a large number of employees – many of whom were black. Several of those employees had been employed as contractors providing services to BMW for many years without any problems. These same employees had previously passed the contracting company’s criminal background check and were re-screened as a result of BMW changing contracting companies. The EEOC has alleged that BMW’s criminal conviction policy considers all past crimes, no matter how long ago they occurred and made no distinction between misdemeanor and felony convictions.
As illustrated by the BMW case, prudent employers should consider the implementing the best practices discussed in this article.