Today I am reading the second update that came in from the EEOC regarding an EEOC class race discrimination lawsuit with a focus on background checks. I am also including a reading from a joint publication by the EEOC and the Federal Trade Commission (FTC) specifically Background Checks, What Employers Need to Know.
FOR IMMEDIATE RELEASE
Nov. 28, 2019
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Retail Chain’s Criminal Background Check Discriminated on the Basis of Race, Federal Agency Charged
CHICAGO – Major retail chain Dollar General will pay $6 million and furnish other relief to settle a class race discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
According to the EEOC’s lawsuit, Dollar General, the largest small-box discount retailer in the United States, violated federal law by denying employment to African Americans at a significantly higher rate than white applicants for failing the company’s broad criminal background check.
Employment screens that have a disparate impact on the basis of race violate Title VII of the Civil Rights Act of 1964, unless an employer can show the screen is job-related and is a business necessity. The EEOC filed suit in U.S. District Court for the Northern District of Illinois in Chicago (EEOC v. Dolgencorp LLC d/b/a Dollar General, Civil Action No. 13 C 4307), after first attempting to reach a voluntary settlement through its conciliation process.
The three-year consent decree settling the suit, signed by U.S. District Court Judge Andrea Wood, requires that Dollar General pay $6 million into a settlement fund which will be distributed through a claims process at the direction of the EEOC to African Americans who lost their chance at employment at the company between 2004 and 2019. If Dollar General chooses to use a criminal background check during the term of the decree, the retailer must hire a criminology consultant to develop a new criminal background check based on several factors including the time since conviction, the number of offenses, the nature and gravity of the offense(s), and the risk of recidivism. Once the consultant provides a recommendation, the decree enjoins Dollar General from using any other criminal background check for its hiring process.
Dollar General is also enjoined from discouraging people with criminal backgrounds from applying, from engaging in retaliation, and from otherwise discriminating on the basis of race in implementing a criminal history check. In addition, the decree requires the company to update its reconsideration process — which operates when a rejected applicant asks the company to reconsider its decision despite the applicant’s criminal convictions. The new reconsideration process must include clear communications to failed applicants that they may provide information to Dollar General to support reconsideration of their exclusion. Finally, the retailer must also provide reports to the EEOC about the implementation of any new criminal history checks and reconsideration processes.
“This case is important because Dollar General is not just providing relief for a past practice but for the future as well,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District. “If the company plans to use criminal history, it must retain a criminologist to develop a fair process. Unlike other background checks based on unproven myths and biases about people with criminal backgrounds, Dollar General’s new approach will be informed by experts with knowledge of actual risk.”
EEOC Chicago District Director Julianne Bowman added, “Because of the racial disparities in the American criminal justice system, use of criminal background checks often has a disparate impact on African Americans. This consent decree reminds employers that criminal background checks must have some demonstrable business necessity and connection to the job at issue.”
This case was litigated by EEOC Trial Attorneys Jeanne Szromba, Richard Mrizek, and Ethan Cohen and Supervisory Trial Attorney Diane Smason.
The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.
The EEOC advances opportunity in the workplace by enforcing the federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.
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Background Checks What Employers Need to Know Using arrest and conviction records to make employment decisions: see Questions and Answers about EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII at www.eeoc.gov/laws/guidance/qa_arrest_conviction.cfm.
Whether arrest and conviction records act as an automatic bar to all employment: see Reentry Myth Buster: On Hiring/Criminal Records Guidance at csgjusticecenter.org/wp-content/uploads/2012/11/Reentry_Council_Mythbuster_Employment.pdf.Using Consumer Reports: What Employers Need to Know at www.business.ftc.gov/documents/bus08-using-consumer-reports-what-employers-need-know
The Fair Credit Reporting Act & social media: What businesses should know at www.business.ftc.gov/blog/2011/06/fair-credit-reporting-act-social-media-what-businesses-should-know
Background screening reports and the FCRA: Just saying you’re not a consumer reporting agency isn’t enough at www.business.ftc.gov/blog/2013/01/background-screening-reports-and-fcra-just-saying-youre-not-consumer-reporting-agency-i
Reentry Myth Buster: Criminal Histories and Employment Background Checks at csgjusticecenter.org/wpcontent/uploads/2012/11/Reentry_Council_Mythbuster_FCRA_Employment.pdf.