Lawsuit over background checks brings policy changes for BMW

Q&A with Nathan Whatley

published in The Oklahoman | September 16, 2015

While employers have the right to use background checks as part of their hiring processes, careful consideration should be given as to when the use of criminal screenings is appropriate. Such was the advice of McAfee & Taft labor and employment attorney Nathan Whatley, who was interviewed by The Oklahoman about a recent case in which the Equal Employment Opportunity Commission claimed that BMW Manufacturing Co. LLC discriminated against African-American employees through its use of criminal background checks at its Spartanburg, SC, plant. The automaker ultimately settled with the EEOC, agreeing to pay $1.6 million in monetary damages to the claimants and offering employment opportunities to nearly 150 people adversely affected by the policy.

At the time of the suit, the automaker’s hiring policies exlcuded anyone who had a conviction in certain categories of crime, regardless of how much time had elapsed since the conviction, or whether the conviction was for a misdemeanor or felony. According to the EEOC, 80 percent of those who were disqualified from employmen were black.

“Employers should give some thought to whether it wishes to use criminal screenings for all positions or only certain more sensitive psoitions,” said Whatley. “Employers should avoid blanket bans on all applications who have a certain classification of prior convictions and instead make a case-by-case determination about each applicant’s history. The employer should consider the nature and gravity of the offense or offenses, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job held or sought.”