Dealers beware: An arrest or conviction alone is not grounds for automatically disqualifying a job applicant.
And doing so might result in legal action, lawyer Mike Charapp says.
His warning follows a lawsuit filed in June by the U.S. government against BMW Manufacturing Co. over the allegedly discriminatory use of criminal background checks in hiring.
In a complaint filed in Spartanburg, S.C., the Equal Employment Opportunity Commission said BMW used those checks in a way that was biased against black workers and job applicants. BMW operates a plant in Spartanburg.
BMW's case is one of the first legal actions since the EEOC gave guidance in April 2012 on how employers should consider arrest and conviction records when hiring, says Charapp, a dealer lawyer and partner with Charapp & Weiss in McLean, Va.
Charapp warns dealers to be careful or they could be next in the EEOC's cross hairs.
In its 2012 guidance, the EEOC said that some minorities have had contact with the criminal justice system at a "disproportionately higher rate" than others, Charapp says.
So an employer automatically treating an arrest or conviction as a disqualifier for a job could have "disparate impact" on some minority applicants, Charapp says.
Dealers must research the specifics of the arrest or conviction, he says. Then, they should consider the gravity of the offense, the time that has passed since the offense and the nature of the job sought, Charapp says.
For instance, a dealer might not want to hire someone convicted of embezzlement to be a controller. But other offenses might be less grave and not impact the job sought.
"Using an arrest as a disqualifier is especially problematic," Charapp recently wrote in his company newsletter. "While the behavior that led to the arrest could lead to disqualification under the policies of many employers, the fact of the arrest itself should not."