According to a Washington Post account, the EEOC claimed that BMW fired 70 employees with criminal histories–even some whose crimes were committed years prior. According to EEOC, Dollar General similarly used the criminal records of two employees to revoked job offers.
According to David Lopez, “It is a fairness issue…[l]itigation is really, truly the last resort.” The lawsuit was brought under the Civil Rights Act.
According to the EEOC, criminal background checks can still be used by employers, but blanket use of criminal background checks leads to a “disparate impact” against blacks. The EEOC press release states that “…Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks. ” In both lawsuits, the EEOC will assert disparate impact against blacks.
According to the Post report, 7 states have already passed laws prohibiting employers from asking about criminal history on job applications, with bills pending in 4 other states. This movement is called “ban the box”–named after the box that you must check on an application for disclosing past criminal history.
The EEOC published guidelines for employers regarding the use of past criminal history. Employers should consider:
- The length of time since the offense occurred
- The relationship of the offense to the job duties
- The nature of seriousness of the crime
Like many states, Colorado’s “ban the box” legislation applies to public employment but some states have begun to extend the legislation to apply to private employers–such as Minnesota, Hawaii, and Massachusetts.
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