by Freddie Allen
NNPA Washington Correspondent

WASHINGTON (NNPA) – The Equal Employment Opportunity Commission, the agency that enforces federal employment discrimination laws, filed lawsuits against BMW and the discount retailer Dollar General alleging that the companies broad use of criminal background checks discriminate against Black applicants and employees.

According to the EEOC, BMW fired dozens of Black employees at one of its plants in South Carolina during “a transitional period” that required employees to re-apply for their jobs. A BMW contractor performed criminal background checks that exposed criminal convictions that prevented the employees from getting rehired. The Washington Post reported that 70 Black employees lost their jobs through the process.

“One woman with 14 years under her belt was let go after a misdemeanor conviction surfaced that was more than 20 years old and carried a $137 fine, according to the EEOC’s lawsuit,” the Washington Post reported.

Dollar General withdrew job offers to two Black women after running criminal background checks. One woman had a 6-year-old drug conviction, but Dollar General disqualifies applicants for that type of conviction for 10 years. Dollar General showed little consideration for the fact that the woman also listed experience working at another discount retailer for four years on her application. The other woman said that her criminal history report contained errors, including a felony conviction. Even after Dollar General management learned of the errors on the report, the retailer still  refused to change their decision, EEOC said in a statement.

Fair employment advocates say that errors on reports and incomplete records make it difficult for companies that rely heavily on background checks to make informed decisions.

“There’s so much information that’s out in cyberspace these days about criminal history records that employers have to be extremely careful about how they evaluate any one report,” said Ray McClain, director of the Employment Discrimination Project for the Lawyers’ Committee for Civil Rights Under Law, a group that advocates for equal justice for all through the rule of law. “They need to use a consumer reporting agency that is very careful about not reporting erroneous information.”

The EEOC filed the lawsuits based on Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin, after the groups couldn’t reach settlements. A statement by the EEOC said that the agency will seek back pay and to enforce additional standards to prevent future discrimination.

“Title VII of the Civil Rights Act of 1964 prohibits discrimination against job applicants and employees on account of their race,” said EEOC Chair Jacqueline A. Berrien in a press release.  “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.”

McClain said the BMW and Dollar General will have a hard time showing that there is any business necessity for excluding the Black workers that meets the standards of Title VII.

“The law requires that the employers show that they have proof that the requirement that they are imposing, that has such a disproportionate impact on minority workers, is job-related and consistent with business necessity,” said McClain. “The biggest problem is that [the companies] are cutting off their noses to spite their faces.”

McClain continued: “They’re excluding people who have perfectly satisfactory work ethics in the same job for no reason at all except for the fact that this person made a mistake a long time ago.”

Instead of excluding workers by using criminal background checks, McClain said employers need to participate in more job fairs and services that target the formerly incarcerated. .

A study by The Pew Charitable Trusts, titled, “Collateral Costs: Incarceration’s Effect on Economic Mobility,” showed that when ex-offenders find jobs, “they are more likely to be able to pay restitution to their victims, support their children and avoid crime.”

Yet, even when they do find legal employment, the stigma associated with their former incarceration follows ex-offenders into the workplace.

According to the Pew study, “By age 48, the typical former inmate will have earned $179,000 less than if he had never been incarcerated.”

That stigma has a greater negative impact on the earnings of Black ex-offenders compared to White ex-offenders.

The Pew report said incarceration slashes the earnings that Black men would have made through age 48 by 44 percent. Incarceration erases half of what a White man would make through age 48.

A study titled, “The Mark of a Criminal Record, published in the American Journal of Sociology found that “whites with criminal records received more favorable treatment (17%) than Blacks without criminal records (14%) with criminal records when it came to receiving callbacks for employment opportunities.

The study also found that the Blacks were more likely than White to be asked about prior criminal history even before submitting applications.

The Lawyers’ Committee for Civil Rights Under Law in cooperation with The Legal Action Center, and the National Workrights Institute issued a report titled, “Best Practice Standards: The Proper Use of Criminal Records in Hiring” to help companies avoid running afoul of EEOC hiring guidelines.

The report detailed a number of recommendations and advised employers to:

  • Consider only convictions and pending prosecutions;
  • Consider only convictions recent enough to indicate significant risk;
  • Do not ask about criminal records on application forms;
  • Use a qualified consumer reporting agency (CRA) to conduct record checks; and
  • Confirm all information from online databases with original source information.

The report also said that employers should consider evidence of rehabilitation when evaluating ex-offenders for future employment.

“People change over time. Some people with criminal convictions change their lives and become good citizens who can be good employees,” said the report. “Applicants with relevant convictions recent enough to be of concern should not automatically be rejected. Instead, he or she should be given the opportunity to present evidence of rehabilitation which the employer should carefully consider before making a decision.”