State attorneys general from West Virginia, Alabama, Colorado, Georgia, Kansas, Montana, Nebraska, South Carolina, and Utah have sent a co-signed letter to the Equal Employment Opportunity Commission (EEOC) urging the Commission to reconsider and dismiss the lawsuits filed against Dollar General and BMW.
The lawsuits allege that the employers’ use of “bright-line” criminal background checks in the hiring process violate Title VII of the 1964 Civil Rights Act. According to the EEOC, Dollar General and BMW violated the disparate impact provision by using generally applicable background checks as bright-line screening tools in the hiring process.
What was the motivation for this letter to the EEOC?
Regarding motivation, some of this has to be viewed through the red/blue prism of politics. If you look at the states that sent the letter, you will see mostly red.
Another motivation is a couple of the states’ constituents. Big constituents. Big, BIG constituents. BMW is a major employer in South Carolina. Their plant in Spartanburg employs over 8000 people. According to data from the U.S. Department of Commerce, based on the 2011 value of BMW exports from South Carolina, the company’s Spartanburg facility is the largest automotive exporter from the U.S. (Speaking of seeing red, I wonder what General Patton would have to say about that were he still alive.)
Regarding the other defendant, Dollar General is one of West Virginia’s largest private employers.
Will their letter change anything?
I doubt it. The EEOC has answered, fairly scathingly, some pro-business articles that attacked them for the new guidance. I do not see a situation in which those at the EEOC in Washington sit down with some of these attorneys general and work out a compromise or walk back on what they have done. If it should happen, I don’t think it will be substantially different. Employers will need to assess job relatedness and business necessity and do some personal assessing.
In the meantime, the guidance for employers is what the guidance is for employers. And the EEOC is being aggressive. Aggressiveness doesn’t just mean going after the big companies. The EEOC has gone from less than 50 investigations in 2006 to nearly 600 in 2012. In 2012, the EEOC recovered $365.2 million in settlements. There were 99,412 cases filed with the EEOC in 2012.
For every BMW or Dollar General you hear about, there’s a few hundred that you don’t hear about. Recently, for example, a major motor carrier entered into a settlement with the EEOC over charges of racial discrimination based on a criminal record background check. The EEOC claimed that the fleet discriminated against an African-American job candidate who was denied a truck driver position based on a criminal conviction record that was unrelated to the duties of the job. The alleged victim has entered into a private settlement agreement with the carrier. In addition to the specific allegations in this incident, the EEOC investigated the company’s broad policies and warned against the use of blanket prohibitions that disqualify candidates with criminal records.
The only sure thing in life is change—but that could change. In regard to the recent EEOC guidance, it could change. However, given the political climate and general warp speed of government action (yawn), I’m not holding my breath for changes any time soon as a result of the attorneys general letter.