While many employers believe they have wide legal latitude when it comes to disqualifying potential employees based on criminal records, two corporations have recently been the targets of legal complaints by the Equal Employment Opportunity Commission (EEOC). The EEOC believes that Dollar General Corporation and a US division of BMW discriminated against applicants by uniformly applying policies that disqualified all applicants with criminal records from employment, regardless of the severity, nature or history of the arrest or conviction. The EEOC alleges in these complaints that these uniform policies designed to deny employment to all potential employees with criminal records constitutes racial discrimination in the hiring process.
According to a 2012 survey by the Society of Human Resource Management (SHRM), 69% of all employers check the criminal backgrounds of potential employees. These checks often uncover criminal records that include arrests that don’t result in a conviction, a conviction that did not result in a jail or prison sentence and convictions for non-violent offenses. A Justice Department official testified in 2013 that as high as one in three Americans have some sort of criminal record.
The Supreme Court stipulated in 1975 in Green v. Missouri Pacific Railroad that a three-part test for assessing an employee with a criminal record based on a background check must be applied. These “Green Factors” state that an employer must individually weigh “the nature and gravity of the offense”, the length of time that has passed since the offense and the nature of the job being applied for. In addition, the EEOC also stipulates that employers must give the potential employee an opportunity to explain their criminal records and other mitigating factors such as rehabilitation services, training and past work experience.