The Equal Employment Opportunity Commission on Tuesday accused two major companies of indirectly discriminating against African Americans by using criminal background checks to screen out workers.
The commission said BMW effectively fired 70 black employees with criminal histories from a facility in South Carolina, even though many had been there for years. One woman with 14 years under her belt was let go after a misdemeanor conviction surfaced that was more than 20 years old and carried a $137 fine, according to the EEOC’s lawsuit.
The agency also alleged that retailer Dollar General revoked job offers to two black women after conducting criminal background checks. In one case, the EEOC said that the records were inaccurate but that Dollar General declined to reconsider the woman’s application. The other involved a six-year-old drug conviction.
“It is a fairness issue,” said David Lopez, the commission’s general counsel. “Litigation is really, truly the last resort.”
The growing use of criminal background checks in hiring decisions has become a flash point in the broader debate over high unemployment rates among African Americans. Not only did blacks lose more jobs and more wealth than other racial groups during the recession, they also have struggled to gain a foothold in the recovery — an issue some community leaders have called the next front in the civil rights movement. A criminal record, advocates say, is an economic scarlet letter that can send otherwise qualified applicants to the bottom of the pile.
The EEOC lawsuits were brought under the Civil Rights Act, which prohibits discrimination against job applicants on the basis of race. Both BMW and Dollar General denied the allegations and said they complied with all laws.
Although the commission said employers are allowed to conduct background checks, it charged that the companies’ blanket policies of not hiring candidates with criminal records amounted to discrimination against African Americans. Justice Department statistics show that blacks accounted for 37 percent of those behind bars last year, even though they make up only 13 percent of the U.S. population.
The EEOC is not alone in focusing on the role of criminal background checks in black employment. Since the recession, seven states — including Maryland — have adopted laws that prohibit employers from including questions about criminal history on job applications.
The movement has been nicknamed “ban the box,” after the box that offenders often are required to mark. Bills are pending in four other states, and at least a dozen local governments have enacted versions of the ban. Business groups have not mounted organized opposition to the measures.
Del. Aisha N. Braveboy (D-Prince George’s), the leader of Maryland’s Legislative Black Caucus, helped spearhead the legislation, which applies only to state government jobs. She said the tight employment market is the top concern in her community, and she connects the problem to the county’s high rates of foreclosure and crime. Helping people find jobs is the first step to addressing broader issues, she said.
“They should pay . . . but should they pay for it for the rest of their lives?” Braveboy said. “We have a responsibility as a society to provide people with opportunities to be gainfully employed and to make better choices.”
The link between race and crime has long been a highly charged and difficult debate rooted in factors such as discrimination and socioeconomic status. The EEOC emphasized that companies have a right to consider criminal history in hiring. Guidelines updated last year say that when evaluating job candidates, employers should weigh the nature of a crime, how long ago it occurred and its relation to the position. Offenders are generally prohibited from working in day-care facilities or prisons, for example.
But the EEOC said it is wary of the way hiring policies can disproportionately hurt minorities.
A landmark study by Princeton sociologist Devah Pager found that white offenders were only half as likely to get a callback from a potential employer and that the effect was even greater for blacks. A separate study by the Pew Center on the States found that even when offenders do land jobs, men with criminal histories earn about 40 percent less than those in similar circumstances without records.
A survey last year by the Society for Human Resource Management, an industry group, found that more than two-thirds of companies conduct criminal background checks. About a quarter of them said nonviolent misdemeanors, such as drug convictions, could influence their hiring decisions, and 60 percent reported that violent crimes could disqualify a candidate. Almost all indicated reluctance to hire someone who had been convicted of a violent felony such as murder. A majority said they allow candidates to explain their records.
In a statement Tuesday, BMW said it has “complied with the letter and spirit of the law” and touted its diverse workforce.
According to the lawsuit, the automaker banned those convicted of crimes ranging from murder to drug use to “theft, dishonesty and moral turpitude.” In 2008, when BMW switched contractors that were handling logistics at its facility in Spartanburg, S.C., it asked employees to reapply for their jobs under BMW’s criminal-background policy. The EEOC suit said 88 people were not rehired. Eighty percent of them were African American.
In its case against Dollar General, the EEOC said the low-price retailer does not adequately evaluate criminal records when hiring. The result was that 10 percent of offers made to black candidates were rescinded after a background check, compared with 7 percent of offers to whites.
In a statement, Dollar General said it seeks to foster “a safe and healthy environment” through its background checks.
But Christine Owens, executive director of the National Employment Law Project, said too many minorities are running into roadblocks.
“It’s such a tough economy that there’s a lot of concern about the barriers that people are facing to employment beyond the fact that there’s just not enough jobs,” she said.
Ryan Moragneel of Baltimore was 18 when he received a felony conviction for distributing marijuana. A few years later, he was put on probation after robbing a pawnshop with some friends. In 2011, he received a misdemeanor charge and spent several months in jail. He said employers take one look at his history and toss his application aside.
“I never really got a chance to be an adult without a record,” Moragneel said. “I’ve never been hired off a computer.”
Now 30 with two kids, Moragneel is set to graduate this month from a skills training program in Baltimore that he hopes will open the door to a job in electrical engineering. If he could talk to an employer, he said, he would say that he has learned from his mistakes and wants to move ahead.
But that can happen only if he lands an interview.
“So far,” Moragneel said, “it’s no calls back.”