BMW Manufacturing Co., LLC (“BMW”) entered into a consent decree with the Equal Employment Opportunity Commission (“EEOC”) regarding allegations that they discriminated against African American logistics employees through application of criminal background checks which had a disparate impact and lead to said employees termination.

You will recall that the issue in the BMW litigation involved the use of a contractor’s less restrictive background screening policy versus BMW’s more stringent policy at a facility in South Carolina.  The latter which resulted in the termination of employees. This led to allegations of race discrimination arising under Title VII of the Civil Rights Act of 1964.  Click here and here to read more on this.

By entering into the consent decree, BMW expressly denies liability and does not admit any wrongdoing.  At the same time, BMW is enjoined from use of the criminal background check guidelines which were in effect.  The consent decree lays out key requirements for BMW and its logistics provider, including:

  • They agree not to decline to hire any job applicant or otherwise disqualify any individual in a logistics position because of “criminal arrests or charges of any type if such arrests or charges did not result in a conviction.” (Consent Decree, p. 5)
  • They can, however, postpone an offer of employment if there is a pending charge, pending resolution.
  • They must conduct an individualized assessment if they seek to disqualify any job applicant based on criminal history.  Meaning they must provide written notice to the job applicant describing the criminal history which is at issue and an offer to the applicant to explain the conviction and their appropriateness for employment.
  • Above notice must be delivered by “reasonable means” and must afford the job applicant of period of at least 21 days during which time they can contact BMW or the logistics provider before an adverse employment decision is finalized. (Consent Decree, p. 6)
  • They must appoint an official to review all final decisions to decline to hire or otherwise disqualify an applicant due to criminal history.

The last two points are noteworthy because (a) they are mandating that BMW conduct an individualized assessment each time criminal history is considered and (b) the 21-day timeframe.  The EEOC enforcement guidance on the use of criminal records guidance does not mandate “individualized assessments”.   Also, employers typically provide 5 business days between providing a job applicant with the pre-adverse action letter under the federal Fair Credit Reporting Act and the adverse action letter (assuming the employer is not going to hire the candidate).  Conceding the point that adverse action notices are different than an individualized assessment and any notice related to that, it is interesting to note the 3 week time period here and what that may mean for employers who may seek to terminate a job applicant due to their criminal history.

Finally, BMW agreed to pay $1.6 million in monetary relief to fifty-six claimants and to offer those claimants who want to return, the opportunity to return to work at the facility.

The case is U.S. Equal Employment Opportunity Commission v. BMW Manufacturing Co., LLC, Sept. 8, 2015 (7:13-cv-01583).