Won’t Hire a Felon? A Government Lawsuit May Follow

From: legal_reality
Subj: Fwd: Won’t Hire a Felon? A Government Lawsuit May Follow

6 July A.D. 2013

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-------- Original Message --------

Subject:	Won’t Hire a Felon? A Government Lawsuit May Follow
Date:	Fri, 5 Jul 2013 20:04:19 -0400

http://blogs.wsj.com/corporate-intelligence/2013/06/11/rejecting-applicants-with-criminal-backgrounds-a-government-lawsuit-may-follow/

A BMW X6 being assembed in the company’s South Carolina plant.                              Bloomberg News

Should an employer be allowed to reject all job applicants with criminal records? TheU.S. Equal Employment Opportunity Commission thinks not, and announced today it is suing two employers, auto maker BMW BMW.XE -2.22% and retailer Dollar General DG +1.76%, saying the practice disproportionately screens out African American candidates.

Via an EEOC announcement:

A BMW manufacturing facility in South Carolina, and the largest small-box discount retailer in the United States violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background policy that resulted in employees being fired and others being screened out for employment, the U.S. Equal Employment Opportunity Commission alleged in two lawsuits filed today.

The EEOC’s Charlotte district office filed suit in U.S. District Court of South Carolina, Spartanburg Division against BMW Manufacturing Co., LLC, and a separate suit was filed in Chicago against Dolgencorp, doing business as Dollar General.

Title VII of the Civil Rights Act of 1964 — the same act that mandated the creation of the EEOC — forbids racial discrimination against job applicants. “Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions, the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII,” said said EEOC Chair Jacqueline A. Berrien.

The EEOC has significantly increased its anti-discrimination actions during the Obama administration — from less than 50 active investigations in 2006, it carried out more than 600 in 2011, the AP reported last year:

The commission decided in 2006 to make systemic cases a priority but was hamstrung by major budget cuts during the Bush administration. EEOC staffing levels were trimmed by nearly 25 percent. Funding was restored once Obama took office, and the agency has hired hundreds of new investigators and experts to tackle the cases.

“There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records,” the EEOC says in an explainer on criminal background checks. “However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups and thus cannot be used in this way.”

Instead of blanket rejections of all applicants with criminal histories, companies should give an applicant “the opportunity to explain the circumstances of the arrest(s) and should make a reasonable effort to determine whether the explanation is reliable.” Employers should then decide whether the person can be trusted to do the job, the Commission says.

Here’s how the EEOC puts it in its Q&A on criminal history checks:

Even where employers apply criminal record exclusions uniformly, the exclusions may still operate to disproportionately and unjustifiably exclude people of a particular race or national origin (“disparate impact discrimination”) If the employer does not show that such an exclusion is “job related and consistent with business necessity” for the position in question, the exclusion is unlawful under Title VII.

The EEOC’s full guidance to employers on the issue — more than 22,000 words of it — is available here.

See also:
Government Cracking Down On Workplace Racism – AP
Perform Criminal Background Checks at Your Peril – WSJ Opinion
There’s No Peril in Following EEOC’s Hiring Guidance – Letter to WSJ From EEOC Legal Counsel

AND NOTE:   Obama's Covert Trade Deal!   http://www.brendanhunt.com/1/post/2013/07/alert-obamas-covert-trade-deal.html