A large convenience store chain recently learned about the Equal Employment Opportunity Commission’s (EEOC) intention to challenge how employers use arrest and conviction records to make hiring decisions.
Criminal History Check Required of All Applicants
Sheetz is a regional convenience store chain based in Pennsylvania that operates more than 600 locations and employs approximately 23,000 workers across six states. As part of its hiring process, the company inquires into an applicant’s criminal history—regardless of the position for which they are applying—through a series of questions on the job application, followed up with a criminal background check.
If the Sheetz representative who is responsible for evaluating an applicant’s criminal history determines they “failed,” then the applicant isn’t hired. The EEOC claims Sheetz job candidates were frequently rejected on this basis. According to a 2022 Rand Corporation study, more than half of unemployed men in their 30’s has a criminal history that limits their ability to find work.
EEOC’s Lawsuit
After failing to reach an agreement with Sheetz over its companywide practice, the EEOC recently filed a lawsuit in federal court against the employer for screening job applicants and denying employment based on a conviction record.
The EEOC didn’t accuse the employer of intentionally discriminating against minority job candidates. Although Sheetz’s hiring practice was race-neutral on its face, the agency contended it disproportionately eliminated Black, Native America/Alaska Native, and multiracial applicants from consideration. The agency claims the criminal history check and its consequences violate Title VII of the Civil Rights Act of 1964, and its lawsuit asks the court to order Sheetz to end its practice. EEOC v. Sheetz, Inc., 24-CV-01123 (Md D.C., 4/17/24).
Heads Up
The EEOC has previously telegraphed its plan to clamp-down on employers making hiring decisions based on an applicant’s criminal history in two published resources, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act and Arrest and Conviction Records: Resources for Job Seekers, Workers and Employers. Its lawsuit against Sheetz is the most recent demonstration of the agency’s attention to this employment practice.
If you are asking applicants about their criminal history and plan on using that information when making hiring decisions, there are some very important steps to consider. If challenged by the EEOC or an individual candidate who was denied employment, these may help you defend your actions:
- Don’t have an across-the-board standard disqualifying anyone with a criminal history. Make hiring decisions on a case-by-case basis.
- Only consider convictions, not arrests.
- When making decisions, consider such things as the job and its responsibilities, the nature and type of crime for which the applicant was convicted, and how long ago the crime occurred.
- Have an HR professional or a supervisor involved in the decision-making.
- Provide the candidate with an opportunity to explain their conviction and make a request that you reconsider denial of employment.
- Determine whether you are hiring in a state or locality that prohibits the consideration of criminal history in hiring (“ban the box” laws).
Charlie Plumb is an attorney in the Tulsa, Oklahoma, office of McAfee & Taft. He may be reached at charlie.plumb@mcafeetaft.com.