Mandated Assessments Included in BMW Screening Settlement

By Roy Maurer Sep 17, 2015
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In a settlement with the U.S. Equal Employment Opportunity Commission (EEOC), car manufacturer BMW agreed to pay claimants $1.6 million and offer jobs to alleged victims of race discrimination. The settlement resolves a federal lawsuit charging that the company’s previous criminal background screening policy discriminated against black workers.

The EEOC sued BMW in 2013, alleging that the company’s criminal background check guidelines constituted an unlawful employment practice that violated Title VII of the Civil Rights Act of 1964, were not job-related and were not consistent with business necessity.

In the summer of 2008, BMW switched its contractor handling the company’s logistics at its production facility in Spartanburg, S.C. It required the new contractor to perform a criminal background screen on all existing logistics employees who reapplied to continue working in their positions at BMW.

At that time, the company’s background screening policy excluded from employment all people with convictions in certain categories of crime, regardless of how long ago the individual had been convicted or whether the conviction was for a misdemeanor or a felony.

According to the lawsuit, approximately 80 percent of the workers disqualified from employment as a result of the screens were black.

In addition to monetary relief, BMW will offer employment opportunities to the discharged workers in the suit and up to 90 applicants who BMW’s contractor refused to hire based on the company’s previous guidelines regarding conviction records. BMW also will provide training on using criminal history screening and be subject to EEOC reporting and monitoring requirements for three years.

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said P. David Lopez, the EEOC’s general counsel.

This was one of the first cases involving the use of arrest and conviction records that the EEOC has filed since the agency issued updated enforcement guidance on screening criminal records in 2012.

BMW denied the allegations of discrimination and has since revised its screening policy.

Light Shed on the EEOC’s Individualized Assessments

The settlement’s consent decree includes the expected prohibition on disqualifying job applicants based on criminal arrests or charges not resulting in a conviction, but also contained a couple of curious requirements.

The decree states that BMW must conduct an individualized assessment if it seeks to disqualify any job applicant based on his or her criminal history. The individualized assessment is a concept the EEOC introduced in its 2012 enforcement guidance. “This means the company must provide written notice to the job applicant describing the criminal history which is at issue and an offer to the applicant to explain the conviction and their appropriateness for employment,” explained Montserrat Miller, a partner at the law firm of Arnall Golden Gregory.

What makes this noteworthy, according to Miller and other experts, is that the 2012 EEOC enforcement guidance on the use of criminal records does not explicitly mandate individualized assessments.

“Individualized assessment has become a new buzzword in EEOC compliance, notable in part because the commission’s guidance is frustratingly vague on how employers are supposed to apply what I would argue has become a de facto requirement,” said Angela Preston, vice president of compliance and general counsel at background screening firm EmployeeScreenIQ. “The process outlined in the decree is laborious, but at least it sheds some light on what the commission has in mind,” she added.

The decree describes an assessment process which includes the employer providing written notice to the applicant containing a verbatim description of the criminal record at issue and an invitation to discuss it. The decree also states that BMW must provide that notice at least 21 days before an adverse employment decision is finalized.

“Employers typically provide five business days between providing a job applicant with the pre-adverse action letter under the federal Fair Credit Reporting Act and the adverse action letter,” Miller said. “Conceding the point that adverse action notices are different than an individualized assessment … it is interesting to note the three-week time period here and what that may mean for employers who may seek to terminate a job applicant due to their criminal history.”

Many employers will struggle with this three-week response time, Preston said. “It’s too early to tell, but the EEOC may be holding BMW to an exceptionally high standard in the wake of the litigation. It seems unlikely that most employers will be able to hold jobs open for a 21-day waiting period.”

Roy Maurer is an online editor/manager for SHRM. Follow him @SHRMRoy

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