When the Equal Employment Opportunity Commission in April sued Sheetz for its hiring practices, it hit the convenience store chain for a social problem that’s largely outside of its control. 

The company’s policy of screening out job applicants who’ve been convicted of a crime is discriminatory, the agency says, not because the policy singles out Blacks and other minorities but because their higher incidence of past criminal convictions means they’re eliminated from contention more often. 

“Federal law mandates that employment practices causing a disparate impact because of race or other protected classifications must be shown by the employer to be necessary to ensure the safe and efficient performance of the particular jobs at issue,” EEOC Regional Attorney Debra Lawrence said when the lawsuit was announced. “Even when such necessity is proven, the practice remains unlawful if there is an alternative practice available that is comparably effective in achieving the employer’s goals but causes less discriminatory effect.”

The agency says the company’s policy resulted in a job rejection rate of 14.5% for Blacks, 13% for Native Americans and 13.5% for people with multiracial backgrounds. Fewer than 8% of whites were rejected. 

While acknowledging the company’s practices weren’t racially motivated, the agency took issue with the absence of any kind of appeals process for candidates to provide additional information that could shed light on their past conviction. 

“Job applicants [have no procedure] to provide Defendants with any additional information that either Defendants or the applicants deem relevant,” the agency says in the complaint.

2012 guidance

There’s no requirement under Title VII of the Civil Rights Act for employers to gather additional information from candidates before making a decision, Pamela Devata of Seyfarth Shaw told Corporate Counsel, but the agency has guidance dating back to 2012 that recommends employers do that.  

As long as the additional information is sought after a conditional offer is made, it should generally be permitted even in jurisdictions that have passed so-called second-chance laws, which are laws that limit what employers can ask job applicants about their criminal backgrounds, Devata told the publication.  

Many jurisdictions also have what’s known as ban-the-box laws, which require employers to make inquiries about an applicant’s past convictions only after a conditional offer is made so the applicant can be assessed just on the basis of their qualifications. 

In its guidance, the EEOC says employers should seek information that can help them understand if the nature of the crime, and how long ago it occurred, could impact their ability to do the job being applied for.   

“Was it a non-violent offense? Was it fraud-based?” Michael Turner of Phelps Dunbar said in an analysis of the lawsuit. “How relevant [is] the offense … to those duties and responsibilities of the available job?” 

Best practices

Given what the EEOC is targeting, employers could benefit from taking a good look at their practices and making adjustments, attorneys say. 

“Employers can reasonably expect that the agency is going to bring more large-scale, systemic actions across the country in this area,” Christopher DeGroff of Seyfarth Shaw told Corporate Counsel. 

Turner recommends employers get familiar with state and local second-chance or ban-the-box laws and adjust their processes to comply with those. 

Even where inquiring into an applicant’s criminal background is permissible, Turner said, employers should avoid a blanket disqualification policy based on the person’s record and instead, following the EEOC guidance, look at the nature of the crime relative to the job being applied for and how long ago it was.  

“Employers should weigh an applicant’s criminal history with all other reasonable, permissible job factors to make an assessment of both the applicant and the job before making a hiring decision,” he said. 

If they use a third party to conduct the background check, they should ensure the vendor is in technical compliance with the federal Fair Credit Reporting Act, he said. The law requires getting the person’s written permission before accessing information about them, among other things.  

DeGroff recommends employers conduct privileged self-audits of their hiring process to see if it's resulting in disparate outcomes. “Understanding an employer’s own data can help business leaders avoid litigation surprises later,” he said in the Corporate Counsel piece. 

In a statement to C-Store Dive, Sheetz said it doesn’t tolerate discrimination of any kind and that it tried to work with the EEOC on a solution. 

“We take these allegations seriously,” Nick Ruffner, a company spokesperson, told the publication. “We have attempted to work with the EEOC for nearly eight years to find common ground and resolve this dispute.”