New Questions About Criminal Background Checks : Legal Before Hi - WSPA.com

New Questions About Criminal Background Checks : Legal Before Hiring?

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One month after the Equal Employment Opportunity Commission sued BMW for using criminal background checks that "constitute an unlawful employment practice" hundreds of Upstate employers still use similar pre-employment screens.

"We run background checks on every new hire," said Todd Coleman.  Coleman owns Summit Janitorial Service in Greenville.  He said the background checks are important to clients who allow his employees into their buildings after hours.

"You wouldn't believe the people who come through here and in a job interview will say, I'm clean no problems, and you run a background check and it will be 20 pages long," Coleman said.

An EEOC attorney, Lynette Barnes, said the checks are legal but they can have "disparate impact".  That means even a seemingly neutral screen can have unintentionally discriminatory impact.

"Disparate impact by its very nature means it is unintentional in its nature, involving a policy that is neutral on its face. That means it is applied to everyone ends up having a disparate impact on a group," Barnes said.

In the BMW case, EEOC said the background checks were more likely to single out minority groups and were illegal.  

BMW denied any discrimination in hiring.

Laton Morgan, a job seeker, said she has been turned away from jobs because of a drug conviction nearly two decades ago.

"He said you have a criminal background and they don't want a person with a criminal background on their property," said Laton Morgan.

Morgan, who is black, said she was working for a temp agency that contracted with a large Upstate employer when she was fired for her criminal past.

Many people contacted WSPA asking if the same protections applied to white people with a criminal record.

"Actually every group, this sounds kind of funny for those who don't do this work, every group is protected because title seven (of the Civil Rights Act) protects everyone based on race," said Barnes. "So a white person, their race is white, and a black person, their race is black, so every group is protected with the application of the criminal conviction records policy of screening. A white individual could file a charge with the EEOC. The challenge would be for them and for us in our investigation to establish that white individual was in fact a part of a disproportionate exclusion by the employers."

"Now because of the statistics, the Department of Justice statistics that go back so far, it would be a very difficult but not impossible showing for someone who is not black or Hispanic. That will be very difficult showing but not impossible," Barnes said.

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