As Big Employers Face Discrimination Lawsuits for Background Checks, Are You Being Overly Broad with Your Inquiries?

As mega-employers Target and Walmart face lawsuits from minority applicants for overly-broad or racially discriminatory criminal background checks, the smaller employers of the world need to take a look at their own hiring practices to see if they are running afoul of the law. 

Last year, Target settled a class action lawsuit with the NAACP for $3.7 million based on its criminal background check in place years ago that allegedly automatically disqualified a significant number of minority applicants who otherwise were qualified for employment with the employer.  It was noted that some of the disqualifying crimes took place 10 to 20 years prior to the candidate applying for the position. 

With Wal-Mart, a group of temporary employees from a warehouse facility previously-operated by a third-party contractor for Wal-Mart files suit against the retail giant after they bought the facility, but refused to hire some of the employees for their old jobs based on their criminal histories. 

In both cases, the employers are accused of looking back deep in applicants’ criminal histories without an individualized assessment of the crimes for which they were convicted. 

As many as 100 million Americans have some form of a criminal record that can affect their ability to secure employment.  In order to combat the possibly unfair stigma the comes along with a criminal conviction, 34 states have adopted some form of “Ban the Box” law, which makes it illegal for employers to inquire into applicants’ criminal histories early in the hiring process.  The hope is that by giving qualified individuals with a criminal record a foot in the door, employers will look past those convictions and focus on the qualifications of the candidate. 

Minnesota’s version of this law makes it illegal for employers to ask about, consider, or require disclosure of an applicant’s criminal history prior to either selecting an applicant for an interview or making a conditional offer to the applicant. 

Both the Minnesota Department of Human Rights and the EEOC advise against using a criminal conviction as a bar to employment opportunity without a job-related assessment.  Employers are advised to make an individual assessment of employees to avoid an unintentional discriminatory treatment or impact, which includes an analysis of:

  • The circumstances surrounding the offense;
  • The applicant’s age at the time or offense;
  • Efforts made by the individual to rehabilitate;
  • Post-conviction work record;
  • Character references;
  • Other factors which may show the individual can perform the duties of the position safely and effectively.

Furthermore, whatever criteria you use to assess individuals, you need to be consistent and apply the same restrictions across-the-board.  You cannot be arbitrary in enforcing your background standards or your individual assessment of employees.  

If you or your employer have questions about conducting legal and effective background checks, contact the Wiley Law Office for advice that works.