Recently, the EEOC filed class actions against two well known employers—BMW and Dollar General—on the theory that their employee background screening programs had a disparate impact on African-Americans, in violation of Title VII of the Civil Rights Act. These cases reinforce the need for employers to revisit their background screening policies and decision-making processes. The BWM and Dollar General class actions are important not only because they continue the three-year trend of heightened attacks on employee background checks, but also because they reflect the first attempt by the EEOC to enforce its 2012 guidance on employers’ use of criminal history information. According to the EEOC’s guidance, to avoid the risk of Title VII liability, employers must generally engage in a “targeted screen.” Under a targeted screen, an employer must first consider whether a conviction bears a substantial relationship to the job. For the last year, many employers have expressed skepticism about the EEOC’s criminal history guidance because it was issued with very little input from employers. Employers have also accused the EEOC of improperly treating the guidance as a regulation or a law. Finally, many employers have suggested that the guidance goes well beyond the EEOC’s real mission, which is to eliminate discrimination. Put simply, Title VII says nothing about protecting “convicts.”
