BMW to pay $1.6M, offer jobs to settle federal bias lawsuit

David Dykes | The Greenville (S.C.) News

GREER, S.C. — BMW Manufacturing Co. said Tuesday it agreed to pay $1.6 million and offer jobs to dozens of African-American applicants to resolve a federal lawsuit and charges based on the company’s previous guidelines governing the use of criminal background checks at its plant in Greer.

The U.S. Equal Employment Opportunity Commission in 2013 sued BMW in U.S. District Court in South Carolina, alleging the company’s criminal background check guidelines used to screen applicants for access to its Greer manufacturing facility had a disparate impact on black candidates and wasn’t job related and “consistent with business necessity.”

The EEOC complaint alleged BMW’s criminal conviction background check policy constituted an unlawful employment practice that violated Title VII of the Civil Rights Act of 1964.

BMW denied the allegations. Company officials said Tuesday that BMW doesn’t discriminate by race in its hiring “as evidenced by its large and highly diverse workforce.”

When it was filed in federal court, the EEOC complaint sought back pay and other relief for 69 blacks, six of whom filed charges with the EEOC, according to agency officials and court records. The remaining 63 were identified as class members, EEOC officials said.

In the settlement agreement, BMW said it will pay $1.6 million and offer employment opportunities through a contracted logistics labor provider to 56 of the lawsuit claimants and up to 90 other African-American applicants identified by the EEOC.

All applicants have to meet employment requirements set by the logistics labor provider, BMW said.

The settlement affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina, company officials said in a statement.

The company has revised its policy and the use of criminal background checks is “to ensure the safety and well-being of all who work at the BMW plant site,” the officials said.

The officials said the BMW plant in South Carolina is in a United States Foreign Trade Zone under the jurisdiction of the U.S. Department of Homeland Security.

BMW is a member of the Customs Trade Partnership Against Terrorism and needs to require criminal background checks not only for its employees but also the employees of vendors, temporary agencies, and contractors who have access to the plant site, company officials said.

In announcing the settlement, P. David Lopez, EEOC’s general counsel, said the agency “has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job related and consistent with a business necessity.”

“We are pleased with BMW’s agreement to resolve this disputed matter by providing both monetary relief and employment opportunities to the logistic workers who lost their jobs at the facility,” said Lynette Barnes, regional attorney for the Charlotte District Office. “We commend BMW for re-evaluating its criminal conviction records guidelines that resulted in the discharge of these workers.”

The EEOC complaint alleged that when BMW switched contractors handling the company’s logistics at its Greer facility in the summer of 2008, it required the new contractor to perform a criminal background screen on all existing logistics employees who re-applied to continue working in their positions at BMW.

At that time, BMW’s criminal conviction records guidelines excluded from employment all persons with convictions in certain crime categories, regardless of how long ago the employee had been convicted or whether the conviction was for a misdemeanor or felony.

After the criminal background checks were performed, BMW learned that approximately 100 incumbent logistics workers at the facility, including employees who had worked there for several years, didn’t pass the screen, according to the complaint.

The EEOC alleged 80 percent of the incumbent workers disqualified from employment as a result of applying BMW’s guidelines were black.

Senior U.S. District Judge Henry M. Herlong Jr. recently denied BMW’s motion for summary judgment in the case.

Herlong also denied the EEOC’s motion for partial summary judgment. Further, he denied motions by BMW and the EEOC to exclude reports and testimony from the EEOC’s statistical expert on disparate impact and BMW’s expert on job-relatedness and business necessity.

The judge’s rulings were a prelude to a possible bench trial. Herlong didn’t set a specific date but indicated a trial wouldn’t be held before Sept. 29, court records show.

BMW officials said at the time they were disappointed in the denial of summary judgment, but were prepared to go to trial.

The case stemmed from BMW’s contract with Management Analysis and Utilization Inc. to replace another logistics provider at the Greer plant, with MAU screening and employing logistics workers who began work in July 2008. MAU, which wasn’t a defendant in the case, declined comment.

BMW’s agreement with MAU required that each applicant with MAU undergo a criminal background check, according to court filings. In June and July 2008, MAU informed BMW that some employees of the previous logistics provider and some temporary staffing agency employees didn’t meet the criteria of BMW’s criminal background check guidelines.

BMW then revoked site access at the plant for 58 individuals in June 2008 and another 42 three weeks later.

In his opinion and order, Herlong rejected BMW’s argument that public policy required criminal background checks and supported granting summary judgment. He found that argument insufficient, Herlong said.

The EEOC in the 1980s issued its first written policy guidance regarding the use of arrest and conviction records in employment. The agency updated its guidance in 2012.

Since then, BMW is one of the first cases involving the use of arrest and conviction records the EEOC has filed, agency officials said.