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EEOC Files Title VII Disparate Impact Discrimination Suits Against Two Large U.S. Corporations

On June 11, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it had filed two lawsuits against two companies, BMW and Dolgencorp, in which it alleged that the companies violated the Civil Rights Act of 1964 by adopting criminal background checks that have a disparate impact on African American applicants.

The EEOC office in Charlotte filed a lawsuit against BMW, alleging that its criminal background check policy disproportionately screened out African American applicants when they applied for employment. BMW maintains a criminal conviction policy that denies facility access to BMW employees and employees of contractors with certain criminal convictions. The policy has no time limit with regard to the convictions, and BMW does not conduct any individualized assessment of the nature and gravity of the crime. Prior to 2008, the BMW facility obtained logistic services from UTi Integrated Logistics, Inc. (“UTi”). UTi screened its employees working at the BMW facility according to the UTi criminal conviction policy, which limits review to convictions within the prior seven years. In 2008, UTi ended its contract with BMW. In order to maintain their positions with the facility, UTi employees were informed that they needed to apply with the new contractor. The new contractor conducted new criminal background checks according to BMW’s criminal conviction policy, leading to the discovery that several UTi employees at the facility had criminal convictions. The employees with criminal convictions were terminated and denied rehire by the new contractor. According to the EEOC, of the 88 employees who were terminated and denied rehire, 70 were African American.

The EEOC office in Chicago filed a lawsuit against Dolgencorp, doing business as Dollar General, alleging that Dollar General conditioned job offers for store clerks on criminal background checks that have a disparate impact on African American applicants. According to the EEOC, store clerks account for ninety percent of all Dollar General’s employees. The complaint alleges that Dollar General gave a conditional employment offer to an applicant with four years’ retail experience. The applicant disclosed a six-year-old conviction for possession of a controlled substance, and Dollar General revoked the offer. The complaint alleged that another applicant was not hired because a criminal background check run by Dollar General erroneously attributed a criminal conviction to her. Although the applicant advised the store manager of the mistake in the report, Dollar General did not reverse its decision not to hire her.

Chaired by Partner Brett J. Schneider, WSH’s Labor and Employment Law Group regularly defends employers against claims brought under Title VII of the Civil Rights Act of 1964, as well as claims brought under the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Equal Pay Act, the Florida Civil Rights Act, the Florida Whistleblower’s Act, and similar Federal, State and local laws. The Group defends lawsuits in Federal and State courts across Florida, including class actions and multi-plaintiff cases. The Group also regularly defends employers against discrimination charges brought before the U.S. Equal Employment Opportunity Commission, the Florida Commission on Human Relations and similar local agencies. Our attorneys also handle arbitrations and civil service board and other administrative hearings for our public sector clients. The Group works with our Litigation Division to put each client in the best leveraged position at every phase of employment and labor litigation to make the best decision whether to settle or to try the case.

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Author(s): Brett J. Schneider