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The recently announced class action filed by the US Equal Employment Opportunity Commission against Dollar General highlights the importance for employers of making sure that they don’t act too “automatically” in rejecting applicants or terminating current employees based on criminal convictions. In its June 11 press release announcing the lawsuit, the EEOC alleged that the retail chain’s policy of conditioning job offers on criminal background checks had a disparate impact on African-American applicants and employees. An employer may be liable for violating Title VII even if its policy requires criminal background checks of all applicants, offerees, or employees, without regard to race or sex. If the effect of such a neutral policy is to exclude members of certain protected groups, and if the employer cannot make a showing that the policy or practice is job-related and consistent with business necessity, then the employer could be liable for discrimination. There is no question that the EEOC is aggressively pursuing disparate impact claims against employers who use criminal backgrounds or credit histories as screening devices, so employers should be cautious.

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