The EEOC has filed a complaint against an auto manufacturer (for the purpose of this blog, we’ll call it Company A) the claim was brought on by 69 individuals. The EEOC alleges that the manufacturer’s criminal background check procedure has an unlawful disparate impact on African American employees and applicants, citing statistical evidence that African Americans are convicted of crimes at a higher rate than the White racial group - you can find the guidance on EEOC’s website. This case is an indication that the EEOC has increased its scrutiny of employers who have a blanket policy of screening out applicants based upon any criminal convictions. In this case, Company A’s policy excludes employees and contractors from their worksite if they have ever had certain criminal convictions. The EEOC issued guidance to employers last year warning them that blanket criminal conviction policies could be found to be discriminatory.
The 69 complainants in this case were Company A contractors. The contractor organization that originally hired these employees had a criminal background check policy that screened for convictions going back seven years. However, Company A’s criminal background check policy was not limited by time – all past criminal convictions were considered. Due to some changes to the contract arrangement, these contract employees who had been working at the Company A facility were transitioned to work directly for Company A. During this transition process, the complainants were required to apply to Company A and go through its selection procedure. At this point they were subject to Company A’s criminal conviction policy, which had no time limit. As a result, some of the complainants that had been working for a few years at the Company A facility were terminated because it was discovered they had criminal convictions that were over seven years old.
EEOC vs. Company A is a great example of the elevated risk associated with taking something away from existing employees by means of a selection procedure. This case probably would not exist if it didn’t involve contract employees trying to become full-time Company A employees. Essentially these contractors lost jobs that they had been performing satisfactorily for several years in the Company A facility due to the criminal conviction policy. It is easy to understand their perception that this selection procedure was unfair.
It is critical that the selection procedure for all applicants (contractors or off-the-street applicants) is the same and is consistently applied. Many employers, like Company A, apply their selection procedure to temporary employees and contract employees at the time that they want to convert them to full-time employees. Oftentimes, this results in temporary employees who have performed well on the job being excluded from full-time employment. This causes frustration for hiring managers and employees, and draws unwanted scrutiny to the selection procedure. A much better alternative is to have the staffing agency or contractor use the exact same selection procedure as the employer they service. This ensures that the conversion process of contractor or temp to full-time employee is simple and eliminates the risk Company A encountered. Secondly it ensures that all individuals working in the employer’s facility have met the same standard and level of competence.