Most Washington residents understand that the law forbids workplace discrimination based on a range of categories: race, gender, sexual orientation, etc. But less understood are the more complex forms that such discrimination can take. It is virtually never the case that an employee will explicitly say “We are not hiring you because you are X,” where X is a prohibited discriminatory category. Instead, the employee or prospective employee will be let go or not hired for seemingly other reasons. It then requires extensive work to put the pieces together that the action was actually illegal.
In some cases the discrimination is shown because of general, system-wide practices which lead to chronic problems. That principle is demonstrated by a high-profile federal lawsuit filed by the Equal Opportunity Employment Commission (EEOC). As discussed in a Washington Post story from last week, the EEOC is alleging that two large companies engage in hiring practices which result in African American applicants being unfairly discriminated against.
The thrust of the argument is that the criminal background check process used by the two named companies–BMW and Dollar General–lead to the firing of African American employees or failure to hire them. In the case of BMW, the EEOC claims that many African American employees were unfairly fired after background checks revealed old convictions. In some cases employees with a decade or more of experience were fired for a single twenty year old misdemeanor charge. Dollar General allegedly failed to hire African American applicants for background check issues, even though, in at least one case, the information in the background check was inaccurate.
This issue of background checks and their effect on certain populations has been a heated topic for some time. As a legal matter, it is a somewhat tricky issue to navigate. Employers are allowed to conduct background checks in most places. However, the allegations in this litigation are that the companies “blanket policy” to not hire or fire those with a record are tantamount to unfairly discriminating against African American applicants and employees.
In fact, more and more jurisdictions, including different municipalities, are passing “ban the box” laws which prohibit applications from including questions about past criminal history. The push for these laws only began in earnest a few years ago with Minnesota becoming the first state to pass such a law. More than half a dozen other states have followed suit since (not Washington state), and several dozens cities have passed local rules to that effect.
Even though Washington does not have a statewide ban the box law, things are different in Seattle. In fact, just this month the Seattle City Council passed the “Jobs Assistance Bill” which automatically precludes individuals who have a criminal background. Instead, the background check can only come into play after an initial screening which eliminates unqualified candidates.
It is important for all employers, large and small, who engage in these types of practices to be held accountable for their unlawful conduct. In many cases it takes a few individuals who were affected by the actions to come forward and explain the situation in order to help hundreds or even thousands of others who were similarly hurt by actions which violate local, state, or federal employment laws.
If you suspect you or someone you know was similarly harmed in this way, please contact the Washington employment lawyers at our firm to see how we can vindicate your legal rights.