Workzone: Indiscriminate use of background checks can rile authorities

They should be used as a fine brush for painting pictures of prospective employees, not as a roller that covers the whole canvas

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Recent lawsuits filed by the Equal Employment Opportunity Commission offer a warning for employers -- be careful about using background checks.

While there has been an EEOC policy against the blanket use of criminal background checks in the hiring of workers since the 1980s, this spring the commission issued new guidelines to help better explain how such checks can be used.

The problem starts with the disparate enforcement of laws. Research by the EEOC found that in 2010 African-Americans were the subjects of 28 percent of all arrests, even though African-Americans make up only 14 percent of the nation's population.

The effect that all of those extra arrests and subsequent convictions have on future employment if employers use criminal background checks for every job is that it puts African-Americans at a disadvantage for getting work.

The EEOC filed two lawsuits, one against BMW and the other against Dollar General, claiming the companies inappropriately used criminal background checks in a way that injured African-American applicants.

The BMW case comes out of a change in the management of the company's logistics in South Carolina. The German car company had outsourced some logistics services, including warehouse work, distribution, transportation and manufacturing support assigned to a UTi Integrated Logistics. UTi hired the workers for those roles and depended on a criminal background check that covered the seven years before employment.

In 2008, when the contract between the two companies ended, a new contractor working with BMW took over those roles and the UTi employees then had to reapply for the jobs they had been doing. BMW's policy stated that the background check had to go all the way back to when the applicant turned 18 and the new company found that several of the existing employees had old criminal convictions. They were subsequently fired.

BMW's corporate spokesman, Dirk Arnold, said the company's response will be made in court, not the press.

The lawsuit against Dollar General alleges that the company makes conditional employment offers that are dependent on a clean criminal background check.

An applicant had worked for another discount retailer for four years without a problem but still was denied employment because of a 6-year-old drug possession conviction. Another applicant was denied employment when her background check mistakenly found she had a previous conviction when she did not.

Dollar General denied that it discriminated in its hiring and employment practices. The company issued a statement that said, "Dollar General's criminal background check process is structured to foster a safe and healthy environment for its employees, its customers, and to protect its assets in a lawful, reasonable and non-discriminatory manner."

The EEOC's guidance on the matter is that criminal background checks should be used as a fine brush for painting pictures of prospective employees, not as rollers that cover the whole canvas.

A previous conviction can be taken into account -- perhaps someone recently released for forgery should not work in a bank or a law firm -- yet not seen as an instant disqualification.

So, someone with an old drug possession charge should not be precluded from working as a sales clerk.


Ann Belser: or 412-263-1699.


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