The EEOC gave enforcement guidance over a year ago on their dim view of criminal background checks and their use in the hiring process.  In the main, this is what they said:

  • They believed in data that showed use of criminal background checks have a disparate impact on race and national origin.
  • Calculated that if incarceration rates remain unchanged, 1 in 17 white males, 1 in 6 Hispanic males and 1 in 3 black males will serve some form of criminal penalty over their lifetime.
  • Their survey showed that 92% of employers use criminal background checks; most all cite the need to combat theft and fraud and manage the risk of workplace violence.

While acknowledging the race neutral basis for the background checks, they also set the following expectation: Employers will take into account the nature and gravity of the offense, the length of the passage of time since last offense, and the relevance to the position.

Well, it looks like they finally found the pigeons to make their point:  BMW of South Carolina and Dollar General of Chicago were both sued by the EEOC on June 11.  Here is an in-depth article  by Michelle Bowman of on the matter.