Bright-line rules may seem convenient but beware if you use any type of bright-line rules in your criminal background screening programs. Dollar General learned this lesson after it faced a lawsuit from the Equal Employment Opportunity Commission (EEOC).
In 2012 the EEOC provided guidance on how to treat arrests and criminal convictions in order to address the disparate impact that they can have on minorities. The “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions” seeks to address discrimination under Title VII of the Civil Rights Act of 1964. The EEOC found issue with Dollar General’s screening practices, filing suit in 2013 and claiming that the company used criminal records in a way that disparately impacted African Americans.
In October 2019 the EEOC and Dollar General entered into a Consent Decree. In addition to paying $6 million, the retailer must submit to the terms of the Consent Decree for three years. The terms address various aspects of its criminal screening program. Dollar General must obtain a consultant who will review and make recommendations for updating its policies and procedures. While the consultant is evaluating the existing program, Dollar General must perform individualized assessments of misdemeanor records. It must also update its reconsideration process for those individuals for whom it denies employment. Other conditions involve background screening training and updating policies to come into line with EEOC and consultant recommendations. The company must provide notices stating that criminal records do not automatically bar applicants from hire. In order for the EEOC to ensure Dollar General is enforcing its updated practices, it must provide annual reports to the EEOC.
It is important to note that the courts involved in the lawsuit did not find against Dollar General and the retailer has maintained that its program does not violate Title VII. This settlement should serve as a warning to other employers to ensure that its screening practices meet not only the EEOC guidance but any other relevant state and local laws. If you would like AccuSource to provide a complimentary review of your current background screening compliance program, please contact us at firstname.lastname@example.org.
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