Because the United States continues to face an influx of rapid changes in employment law, employers must deal with the reality that room for error is steadily shrinking when it comes to questionable background check processes. Since these rules and regulations keep intensifying (and are showing no sign of slowing in the near future), employers must be at least one step ahead to avoid becoming yet another unfortunate target in the war for employment equality.
EEOC vs. BMW
One of the more recent and high profile cases on hiring discrimination came to a final, expensive conclusion just this last September. In the discrimination lawsuit won this last September by the EEOC against the BMW Manufacturing Company, BMW was ordered to pay 1.6 million dollars to ex-African American employees discriminated against during the company’s background screening rehire process. According to this article published by JDSupra Business Advisor by Patricia Devoy and Edward Hollis of Faeger Baker Daniels, a large toll is taken from everybody involved in these types of lawsuits no matter who wins.
1) The unfortunate trend has continued where employees are discriminated against in the pre-hire process due to companies denying employment and basing these decisions on adverse information that is more commonly associated with minority groups.
- Too many companies are also participating in a related practice of using information and searches that are not directly applicable to the job being applied for. Example: the use of motor vehicle records (MVR) searches when the position doesn’t have anything to do with operating company machinery.
2) Both sides (plaintiff, defendant) have to deal with steep attorney fees and the sheer amount of time spent in court (BMW’s case started back in 2013).
3) Affected employees have to wait indefinitely for compensation, which may end up being a settlement that may not match the damage caused.
4) Many businesses do not have the luxury of vast resources (time and money) to devote to these types of situations and cannot survive when taken to court.
5) As a government agency, the EEOC draws from the American taxpayer—when the EEOC takes a hit from losing in court and/or absorbing astronomical attorney fees, taxpayers are the ones who ultimately take it right on the chin.
These discrimination charges can cause irreparable damage to a business’ reputation alone, never mind the possibility of ending up on the losing end of a costly courtroom struggle. Owners and their companies are in immediate danger of finding themselves in court if current and/or past hiring policies leave any room for negative interpretation by the EEOC, and these agencies are showing no sign of stopping the crack-down when it comes to the permissible use of background screening reports in the employment process.
For more information refer to article: 5 Steps to Protect Your Business From Discrimination Lawsuits
To avoid being caught in the crosshairs, the first priority is to make absolutely sure these policies are established: coordinate between your business’ HR legal team and/or your current, third-party background screening provider (if you have one) to solidify these processes. Disclaimer: background screening companies cannot give legal advice, but they can absolutely give suggestions along the way. If these processes are already founded, it never hurts to review these with your background screener (also referred to as ‘CRA’ or Consumer Reporting Agency) or to do an internal audit to make sure everything is honed and polished in the hiring process. It’s also a great idea to check in on a regular basis with both the guidelines set forth by the EEOC and the FTC (FCRA guidelines) to keep up with official changes as things continue to evolve in the hiring arena.
“NELP: Ban the Box / Fair-Chance Hiring Guide”
“BMW to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit”
“EEOC Criminal Background Check Cases Come With Big Price Tags for All Parties”
Faegre Baker Daniels Homepage
“Background Checks: What Employers Need to Know”
“Using Consumer Reports: What Employers Need to Know”