The Equal Employment Opportunity Commission (EEOC) continues to make headlines with its efforts to create and enforce updated standards on employers’ use of criminal background checks. Armed with its updated guidance, which we highlighted earlier this year, the EEOC fired a recent warning shot at Dollar General Corporation.
According to a Nashville Business Journal headline, Dollar General is facing EEOC scrutiny over its criminal background check policy. The company’s own SEC filing statement indicates it has received a ‘cause finding’ by the EEOC alleging that Dollar General’s criminal background check policy, which excludes from employment individuals with certain criminal convictions for specified periods, may violate Title VII because it has disparate impact on African-American candidates and employees.
In response to the EEOC’s charge, the retailer claims in the SEC document that its current policy is not only lawful but also necessary to protect its assets, shareholders’ investments, and to provide a safe working environment for its employees.
Establishing the Link to Role-Related Risk
The case of Dollar General could go either way, and there’s really not enough information out there yet for us to judge. But we can guess that the case may have something to do with having a blanket policy for the use of criminal records checks. In other words, when the EEOC finds a case where any and all applicants—regardless the specific risks of the role they’re seeking—are screened based the same criteria without personalized assessment, the EEOC may view this as discriminatory.
We’ll say again that it’s not clear that this sort of blanket approach is what Dollar General was implementing, since by their own admission they were excluding only “certain” criminal convictions over “specified” periods of time. But that may not be enough considering the EEOC’s reaction.
An employer has every right to run a criminal background check in order to protect its assets, shareholders’ investments, and the safety of its working environment. But… it’s true that criminal records checks in and of themselves have disparate impact on protected classes. Therefore, employers must mitigate for this disparity by considering the nature, gravity, and time that has passed since the conviction and/or completion of the sentence and the nature of the job sought in order to be sure that any exclusion made is important for the particular position.
In other words, there must be a clear link between the specific criminal conduct and the risks inherent in the duties of a particular position.
Not only that, but the EEOC wants to see a more personalized approach.
Uniform Guidelines on Employee Selection Procedures
The EEOC is looking for employers to consistently meet the job relatedness/business necessity defense by:
- validating the position’s criminal screening per the Uniform Guidelines on Employee Selection Procedures (Uniform Guidelines) standards; OR
- developing a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job; AND
- providing an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied to the individual is job related and consistent with business necessity.
This individualized assessment is big. And it could just be where the buck has stopped in the Dollar General case. Only time will tell. We’ll try to keep you posted.
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