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Hospitals, healthcare organizations and other organizations that frequently use contract workers should be aware of recent actions taken by the EEOC against BMW. The agency filed a suit against BMW in South Carolina, alleging that its background screening practices discriminate against African-Americans, who have higher arrest and conviction rates than whiles.

2012 EEOC Guidance
You are probably aware of the updated guidance put forth by the EEOC in April 2012 for the use of criminal background checks. The recommendations included applying individualized assessments and avoiding blanket exclusion policies in cases of applicants or employees whose background checks contain a criminal record. With its case against BMW, the EEOC has begun to take action against employers that it claims discriminate against applicants or employees through the use of background checks.

Background: BMW Lawsuit
BMW’s criminal conviction policy, in place since 1994, denies facility access to BMW employees and contractor employees with certain criminal convictions. The company has no time limit with regard to the convictions. This policy affected dozens of employees that worked for a contractor that staffed a South Carolina BMW facility. The contractor’s policy was to limit review to convictions within the prior seven years. When the contract ended and employees re-applied with a new contractor, all employees were required to be re-screened and it was discovered that some employees had criminal convictions that violated BMW’s blanket exclusion policy. They were therefore not re-hired and were terminated.

The lawsuit was brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation. In these cases, the claim by the EEOC is that of disparate impact – in these instances against African Americans.

Why Is this Lawsuit Important for Hospitals and Employers that Use Contract Workers?
1. The EEOC lawsuit against BMW specifically addresses the applicability of Title VII to an employer’s use of contract staff. BMW used a contractor, but required the contractor to conduct background checks. BMW ultimately made the decision not to allow the contractors into their facilities and because their process is perceived by EEOC as overly broad and having disparate impact on protected classes, they are being investigated. So, despite the fact that BMW was not technically the employer, it still made the employment decision with regards to who could work in its facilities.
2. BMW’s criminal conviction policy had no time limits. Thus it is a blanket exclusion, with no individualized assessment of the nature or gravity of the crimes, the age of the convictions and whether the convictions applied to the work being done.

Corporate Screening advises hospitals and other employers to review their hiring practice procedures, in light of this case. Take a hard look at practices such as blanket exclusions, specific time limits for convictions, and whether or not your organization’s policy allows for individualized assessments in cases where criminal background checks return negative information.