An employer's misuse of criminal background checks can result in illegal employment discrimination.  BMW knows this, having paid $1.6 million to settle a race discrimination case arising from its misuse of criminal background checks.  USA Today reports: BMW To Pay $1.6 Million, Offer Jobs to Settle Federal Bias Suit. EEOC has its own press release

First and this point must be clear: employers may use criminal background checks on applicants and employees.  But there is a limit and condition to everything: employers may not use criminal background checks on applicants and employees, if their use results in disproportionate discrimination and there is no good employment or business-related reason for the check.  BMW's case shows the difference.

In 2008, BMW changed to a different contractor to handle logistics at its plant near Spartanburg, South Carolina.  Employees -- some of whom had been working for several years -- in logistics that wanted to keep their jobs and work for the new contractor were subjected to criminal background checks. BMW's policy at the time demanded that anyone with a past criminal conviction no matter how old, no matter the nature and no matter whether it was a felony or misdemeanor be let go.  This process identified about 100 employees about 80% of which were African-American.  This racial disparity required BMW to come up with a sound business related reason for the background check, a hard thing to do since many of the employees had been working at the plant for quite some time in some cases several years.  

This is an instance of what is known as "disparate impact" discrimination. "Disparate impact" discrimination occurs where a facially neutral policy such as a criminal background check proves to have a disproportionate effect on a segment of the workforce, at the BMW plant it was African-American employees and unlawful race discrimination.  

But the "disparate impact" is not enough to show the violation; it must also be that there is no legitimate business-related reason that justifies the disparate impact. In BMW's case, it was not possible to explain why a bunch of African-American employees who had been working out just fine at the plant all of a sudden had to be fired because of something that had been there all along.  No good reason there. 

Lexington, Kentucky discrimination lawyer Robert Abell represents individuals and employees in discrimination cases; contact him at 859-254-7076. 

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