EEOC vs. BMW - U.S. District Court enters a Consent Decree against BMW

On September 8, 2015, The U.S. District Court for the District of South Carolina entered a consent decree ordering BMW Manufacturing Co., LLC (BMW) to pay $1.6 million and provide job opportunities to alleged victims of race discrimination as part of the resolution of a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit alleged that BMW excluded African-American logistics workers from employment at a disproportionate rate when the company's new logistics contractor applied BMW's criminal conviction records guidelines to incumbent logistics employees. According to the lawsuit, BMW ordered the new logistics company to perform criminal background checks on all existing logistics employees who had to re-apply with the company in order to continue to work on the BMW contract. Allegedly, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain categories of crime, regardless of how long ago the employee had been convicted or whether the conviction was a felony or misdemeanor.

According to the complaint, after the criminal background checks were performed, BMW learned that approximately 100 incumbent logistics workers at the facility, including employees who had worked at there for several years, did not pass the screen. EEOC alleged that 80 percent of the incumbent workers disqualified from employment as a result of applying BMW's guidelines were black. 

Following an investigation, EEOC filed suit alleging that blacks were disproportionately disqualified from employment as a result of the criminal conviction records guidelines. EEOC sought relief for 56 African-Americans who were discharged. BMW has since voluntarily changed its guidelines.  

The Consent Decree includes:

• BMW to pay a total of $1.6 million to resolve the litigation and two pending charges related to the company's previous criminal conviction records guidelines that had been filed with EEOC.
• BMW will offer employment opportunities to the discharged workers in the suit and up to 90 African-American applicants who BMW's contractor refused to hire based on BMW's previous conviction records guidelines.
• BMW also will provide training on using criminal history screening in a manner consistent with Title VII. 
• Additionally, BMW will be subject to reporting and monitoring requirements for the term of the consent decree.
• modify its criminal background check policy, which cannot use non-pending arrest records as a reason to decline employment;
• provide written notice to the applicant identifying the offending criminal history information, requesting additional information about the criminal offense (accuracy, circumstances, rehabilitative efforts, personal references, and other information for consideration); hold open a position for 21 days; have an official review on all decisions not to hire or disqualify an individual from employment prior to a final decision being made; create a database of individuals excluded pursuant to the policy; maintain various records related to the criminal background checks and provide the database to the EEOC;  train its staff on the new requirements; 

Aurico reminds employers to review the EEOC Criminal Guidelines issued in 2012”Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964”  Employers should review their criminal background check policies with their legal counsel on a periodic basis and to include an individualized assessment when assessing criminal records.  

¹EEOC Press Release 09-08-2015