July 18, 2016
Workplace safety, trust, and productivity begin with proper hiring, where criminal background screening often plays an essential role. Indeed, many employers have been sued for “negligent hiring” for failure to screen applicants based on criminal history. While screening policies serve a good purpose, employers must craft their policy carefully to ensure they do not run afoul of Title VII of the Civil Rights Act and the federal government’s ever-increasing enforcement efforts against perceived racial discrimination. Even a facially neutral policy, such as excluding applicants based on certain criminal conduct, could be found in violation of Title VII if the policy has a disparate racial impact without a demonstrated business necessity.
An example of the risk that employers face is BMW’s recent settlement for $1.6 million in a federal lawsuit brought by the EEOC, which alleged that BMW’s criminal background screen excluded African-American logistics workers from employment at a disproportionate rate. Specifically, BMW’s policy excluded from employment all persons with convictions in certain categories of crime, regardless of how remote in time or whether the conviction was a misdemeanor or a felony. For employees seeking to retain their positions at BMW’s South Carolina manufacturing facility, the EEOC alleged that the policy excluded 19 percent of the African-American employees but only 6 percent of whites. BMW maintained that the EEOC skewed results by performing its analysis only on a small, unrepresentative subset of logistics workers.
The BMW case illustrates how the complexity and uncertainty of disparate impact claims puts employers in a pickle between avoiding the appearance of discrimination and ensuring a safe workplace staffed with trustworthy employees. Fortunately, an employer does have a defense to a disparate impact claim under Title VII where the policy is “job related and consistent with business necessity.”
BUSINESS NECESSITY DEFENSE
According to the EEOC’s enforcement guidance, there are two ways for an employer to establish the business necessity defense for its screening policy. First, the employer can do a “validation study” under the Uniform Guidelines on Employee Selection Procedures, but the EEOC seems to doubt whether this approach is even possible given the general lack of social science assessing whether “convictions are linked to future behaviors, traits, or conduct with workplace ramifications.”
The second—and more likely successful—approach endorsed by the EEOC is for employers to develop a “targeted screen” by considering three factors: (1) the nature of the crime; (2) the time elapsed; and (3) the nature of the job. These factors came about in Green v. Missouri Pacific Railroad, where the Eighth Circuit Court of Appeals held that the employer’s policy of automatically denying employment to anyone with a criminal conviction constituted racial discrimination under Title VII. The EEOC guidance does not explain how employers should weigh the gravity or remoteness of different offenses other than to say that less severe crimes and those farther in the past might not have a “nexus” to the job position in question. Although it is not required by Title VII, the EEOC recommends individually assessing any person identified by the criminal background screen, to double check that the policy as applied is job-related and consistent with business necessity.
Employers who want to screen applicants based on arrests in addition to convictions should be especially wary, because the fact of an arrest will not generally serve as sufficient evidence that a person engaged in particular conduct. The EEOC also cautions that while an inquiry into the conduct underlying an arrest can be relevant, the arrest record standing alone may not be used to deny employment.
INSIGHTS FOR EMPLOYERS
- When implementing a background screening policy, avoid blanket policies and be sure to take into account the nature of convictions, their remoteness, and the nature of the job at issue.
- Screening policies based on arrest records (rather than just convictions) will receive the highest scrutiny and therefore ought to include an individualized inquiry into what conduct actually occurred and whether it makes the individual unfit for the position in question.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.