The recent EEOC filing of race discrimination for employment practices against JB Hunt Transport, Inc., one of the largest freight companies in America, is clearly bad news for JB Hunt and those impacted by what may have been discriminatory practices. But its settlement of these charges in late June may provide a worthwhile blueprint for a criminal record check policy for all employers.
The EEOC Charges Against JB Hunt’s Use of Criminal Records
The issue in the JB Hunt case was that the company allegedly refused to hire a black applicant as a truck driver in 2009 because of a prior criminal conviction. The EEOC claimed that this was racial discrimination because the prior conviction was unrelated to the job in question. In addition, the Commission determined that the company used blanket prohibitions based on criminal convictions in its employment policy.
This case adds to evidence that the EEOC is aggressively pursuing employment discrimination. In a previous post, we reported two other cases – against BMW and Dollar General – where the Commission took legal action based on its revised guidelines issued in April 2012 for compliance with Title VII of the Civil Rights Act. All of these cases charged racial discrimination based on either “disparate treatment” or “disparate impact” of an employment policy or decision.
In the JB Hunt case, the alleged denial of the applicant went against the EEOC criterion that a criminal record should only be used to deny employment if the prior conviction is job related and denial would be consistent with business necessity. In cases like this, the Commission stresses the importance of individualized assessments to determine the relevance of the background finding. Further, it is reasonable to assume that JB Hunt’s blanket prohibition of employment based on a criminal conviction could have created a “disparate impact” on black applicants because the conviction rate among black males is proportionately higher than among whites and other groups.
In settling the lawsuit, JB Hunt has accepted a five-year conciliation agreement by which it will “review, revise if necessary, and provide additional training” on its employment policies in order to comply with EEOC guidelines. In addition, the company has reached a separate settlement with the alleged victim.
How NOT to Follow JB Hunt’s Example When It Comes to Criminal Records Screening
We say again: Employers DO have the right to investigate prior criminal convictions in employment reviews AND they are wise to do so, BUT they must do so in compliance with these EEOC guidelines. We have provided a more detailed outline of compliance best practices in a prior post, but the general point is to have a clear, concise written policy for using criminal background checks in employment decisions that is compliant with EEOC guidelines. And then follow it.