The nation’s largest small-box retailer agreed to pay $6 million and provide other relief to resolve claims that it violated the 1964 Civil Rights Act.

According to the Equal Employment Opportunity Commission, Dollar General overused criminal background checks during the interview process. “Because of the racial disparities in the American criminal justice system, use of criminal background checks often has a disparate impact on African Americans,” explained EEOC Chicago District Director Julianne Bowman. The agency’s lawsuit alleged that, statistically, more black applicants than white applicants failed the background check.

Dollar General must also abide by a three-year consent decree. Among other requirements, the chain must hire a criminology consultant to fine-tune its criminal background checks.

 

Pre-Employment Criminal Background Checks

Currently, South Carolina lawmakers are considering a statewide ban-the-box law. Richland County, the City of Columbia, and a few other smaller government entities already have such laws.

Contrary to the popular myth, ban-the-box laws do not forbid all questions about criminal records. These laws only prevent employers from asking such questions during the initial screening process. After that, these inquiries are fair game.

However, the questions must be tailored to the job requirements. For example, a marijuana possession conviction should not affect a chef’s application. POM (possession of marijuana) is not a crime of moral turpitude. Furthermore, the infraction has little if anything to do with food preparation.

 

Disparate Treatment and Disparate Impact Discrimination

Note that the Dollar General lawsuit involved disparate impact discrimination. This form of bias is essentially unintentional discrimination. Dollar General did not intend to exclude black applicants, but its policy had that effect.

Other examples of disparate impact discrimination include no-beard rules and English-only policies. These restrictions disproportionately affect certain groups. Some religions require or encourage men to grow beards, and some ethnicities are more prone to razor burns or bumps. English-only policies may indirectly involve national origin discrimination.

Disparate impact policies are only legal if the defendant establishes a business necessity. A food service company might get away with a no-beard policy, and a sales agency might employ an English-only policy.

Disparate treatment, on the other hand, is direct and intentional bias. A company deliberately singles out a protected class of individuals and treats them differently. Some protected classes include disability, age, and gender. All these categories are broadly defined.

Employment discrimination in any form is illegal. For a confidential consultation with an experienced employment law attorney in Greenville, contact the Briggs Law Firm. We routinely handle matters in Greenville County and nearby areas.

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