When BMW took changed the logistics company it was using to provide services to one of its factories, the automaker assured the employees that it would try retain all of them, but each would have to reapply. BMW ran background checks on 645 prospective employees and disqualified 88 of the workers based on the criminal checks, even though they had all been working at the company for some time.
The Equal Employment Opportunity Commission (EEOC) recently filed suit against BMW, claiming that its use of criminal background checks improperly and illegally discriminated against African American workers at the plant. According to the discrimination complaint, only 55 percent of the workers are black, but 80 percent of those disqualified based on the background check are black.
One man lost a job he had held for 14 years because of a misdemeanor conviction more than 10 years old because of the background screen.
BMW refused to make any individual assessments for those who were disqualified from employment on the basis of the criminal screen. Instead, it simply revoked access to the plant for those who no longer qualified for employment.
Although BMW's across-the-board policy regarding criminal records of potential employees may have seemed race-neutral, when it was applied to the candidate pool, it was not. This is considered a disparate impact and can give rise to a claim for employment discrimination based on race.
BMW insists that it has complied with prohibitions against race-based discrimination in the work place and that its policy for use of background checks in employment pre-screening was applied evenly, regardless of skin color.
Source: Thomson Reuters News & Insight, "EEOC files suit over employers' use of criminal background checks," June 12, 2013