Human Resources News & Insights

$1.6M lesson: Think twice about re-screening current workers

Background checks have come under heavy scrutiny from the EEOC in recent years, and knowing when they should and shouldn’t be used isn’t always easy. But car maker BMW should’ve known better in this case. 

What did it do? It asked some of its existing workers — who seemed to be working out just fine — to submit to the same criminal background screening that new hires were being subjected to.

In the EEOC’s eyes, that was a problem.

Incumbent workers tested, too

Here’s the full story:

The EEOC recently sued BMW Manufacturing Co., claiming the company discriminated against African-Americans.

When BMW switched which contractor was handling logistics at its Spartanburg, SC, facility, it required the new contractor to perform a criminal background check on both new applicants for logistics positions and all existing logistics employees who re-applied to keep their current positions.

BMW’s strict hiring guidelines at the time excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the crime was committed. And as a result of sending existing logistics workers through the screening process, including some of whom had been with the company for several years, 100 incumbent workers were denied re-employment.

The EEOC claims these actions had a disproportionate impact on African-American workers. Specifically, it claimed that 80% of those affected were African-American.

Was there a business necessity? No

The Civil Rights Act stipulates that when a background screening disproportionately affects one group of employees (i.e., African-Americans, Latinos, etc.), and there’s no business necessity tied to the screening, it’s illegal.

Since it was likely hard for BMW to argue there was a business necessity for excluding the incumbent workers — after all, they seemed to be doing their jobs just fine up until this point — the EEOC declared the screening a big no-no.

The agency then sued on behalf of the majority of the African-American workers who lost their jobs.

The result? BMW has since changed its guidelines, and it has consented to pay $1.6M and provide job opportunities to the victims of the alleged racial discrimination to avoid litigation. In addition, BMW agreed to offer employment opportunities to up to 90 African-American applicants who were denied employment as a result of the previous conviction guidelines.

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