A Tale of Two Companies: EEOC Files Complaints against BMW and Dollar General Alleging Improper Use of Criminal Background Check

2010 Chicago Demographics Source: radicalcartography.net

‘Tis the season of the summer blockbuster, but while moviegoers are treated to the decadence of the 1920s, deep space exploration, and 6x the car chases, the familiar tale of racial discrimination in employment plays on a loop in the background. The City of Chicago and the state of South Carolina are not new characters in this story, but *Spoiler Alert* there is a new plot twist: a year after the Equal Employment Opportunity Commission (EEOC) released guidance for employers on the proper use of criminal background checks, two employers – Dollar General in Chicago and BMW in South Carolina – are allegedly using criminal background checks to weed out potential and current African-American employees.

The guidance released by the EEOC last April draws attention to the general increase in the number of people involved in the American criminal justice system and the disproportionate impact that it has had on minorities:

In the last twenty years, there has been a significant increase in the number of Americans who have had contact with the criminal justice system. . .By the end of 2007, 3.2% of all adults in the United States (1 in every 31) were under some form of correctional control involving probation, parole, prison, or jail.

Arrest and incarceration rates are particularly high for African American and Hispanic men. African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population. Assuming that current incarceration rates remain unchanged, about . . .1 in 3 African American men [are expected to serve time in prison during their lifetime].

1 in 3 African American men will spend time in prison?! Is this some sort of Wes Craven-created nightmare sequence?

According to the Wall Street Journal, the complaints filed by the EEOC allege that Dollar General revoked conditional employment offers for 10 percent of its black applications, but only 7 percent of its nonblack applicants, which has created a “gross disparity” based on race. The complaint against BMW alleges that, after hiring an outside contractor in 2008, BMW required all of the employees (some of whom had worked at the BMW plant for as long as 14 years) to undergo new background checks. Fifty-five percent of the contractor’s employees were black, but a whopping 80 percent of terminated employees were black.

Notwithstanding the tense racial histories of both locales, reality for many black Americans includes living in heavily policed areas and racial profiling by the police (a la NYC’s controversial stop-and-frisk policy) that contributes to the greater number of arrests and contact with the criminal justice system. There are valid reasons why an employer may want to exclude someone with a criminal record and the EEOC is not forcing employers to take on unjustified risks. The April 2012 guidance advises employers to make sure that criminal conduct exclusions are job related and consistent with business necessity, so that valuable employees who have either served their time or were never convicted of wrongdoing are not excluded wholesale from employment opportunities.

Let’s hope this tale has a happy ending.