EEOC Sues Employers for Making Hiring Decisions Based on Criminal Background Checks

A little over a year ago, I told you that the EEOC published new guidelines for how an employer should (1) handle inquiries into an applicant’s prior arrests and convictions, and (2) make employment decisions based on an applicant’s prior criminal record.  You can find my blog post from May 1, 2012 here.   Not surprisingly, the EEOC has now started to enforce these new guidelines.  On June 11, 2013, the EEOC filed two separate lawsuits in federal court against Dollar General Stores and BMW, alleging that the their use of criminal background checks to screen job applicants constituted illegal discrimination under Title VII because it disproportionately excluded African Americans from employment.   The EEOC’s complaint against Dollar General Stores can be found here, and the EEOC’s complaint against BMW can be found here.

In short,  these lawsuits send a clear message that the EEOC will strictly scrutinize an employer’s use of criminal background checks if they adversely impact employees in protected categories.  California employers should also remember that California has additional state laws governing the use of criminal background checks in the hiring process (e.g., Labor Code §432.8, which prohibits employers from considering certain marijuana-related convictions).  Therefore, California employers that seek to use criminal background records to make hiring decisions should be careful to comply with federal Title VII law (as interpreted by these new EEOC cases) and all relevant California state laws as well.