In 2012, the EEOC issued guidance to employers regarding the use of criminal background checks as a pre-employment screening process. link The Agency believed that the use of criminal background check would or could lead to a disparate impact on black job applicants. In its guidance, the Agency stated, “National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin.

On Tuesday, in its continued effort to limit the use of background checks, the EEOC filed suit against Dollar General Corp and a U.S. unit of German auto maker BMW, AG alleging that the companies’ policies regarding the use of background checks had the effect of discriminating against black applicants.

Despite its actions, EEOC senior Counsel James A. Paretti Jr., speaking the American Bar Association ‘s Labor and Employer Conference, explained that the EEOC was not seeking to bar the use of criminal background checks but wanted employers to at least consider what it calls the “Green Factors” in making its employment decisions. In Green, the 8th Circuit identified three factors that it considered relevant to assessing the applicant’s criminal record as it related to the job being sought. They are:

• The nature and gravity of the offense or conduct;
• The time that has passed since the offense or conduct and/or completion of the sentence; and
• The nature of the job held or sought.

See Green v Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977).
Employers are cautioned that the use of background checks without consideration of the “Green Factors” could lead to litigation by either a rejected applicant or the EEOC.

For more information on this case and other employment law related matters, please contact Brennan Donnelly at [email protected]