Back in June of 2013 we published a blog about the EEOC case against BMW for disparate impact discrimination over the company’s use of criminal background checks. The EEOC had brought suit against BMW claiming it had taken discriminatory action in connection with the company’s former criminal background checks policy, which allegedly disproportionately affected African-Americans.
The case has reportedly been settled with BMW to pay $1.6 million and to offer employment opportunities to the discharged workers in the suit as well as up to 90 African-American applicants whom BMW’s contractor refused to hire based on BMW’s previous conviction records guidelines, among other provisions.
The EEOC’s general counsel, David Lopez, said in a statement: “EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity.”
In its own statement BMW says that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background checks is to ensure the safety and well-being of all who work at the BMW plant site.”
And herein lies the employer’s dilemma.
This case perfectly demonstrates how, on one hand, the EEOC requires employers to treat everyone the same but assess them individually in regards to their criminal background. On the other hand, workers, customers, and the public expect you to do all you can to protect them. This means keeping potentially unfit or unsuitable people out of positions where they might cause harm.
Throughout the proceedings BMW maintained that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring. The company also points to the fact that the BMW plant in question, located in South Carolina, is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security. Furthermore the company states, “BMW is a member of the Customs Trade Partnership Against Terrorism (C-TPAT) and therefore has a business necessity to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site.”
We can’t help but imagine a scenario where the lawsuit in question is a negligent hiring case instead of a disparate impact discrimination case. It’s a tough time for employers who strive to be fair and protective at the same time. We believe the only way forward for employers is to avoid blanket policies and embrace the use of individualized assessments as an integral part of the hiring process.