BALTIMORE – The Equal Employment Opportunity Commission last month sued Pennsylvania-based convenience store chain Sheetz, charging that the criminal background check in its hiring process has discriminated against job applicants of Black, American Indian/Alaska Native and/or multiracial origin.
The company says it has tried to reach "common ground" with the EEOC for eight years but faces suit anyway in Maryland federal court. The case is based on Title VII of the Civil Rights Act, which, when used to pin liability for disparate impact, makes pretty much everything illegal, one scholar has written.
A spokesperson for Sheetz, Nick Ruffner provided a statement on the suit.
“Diversity and inclusion are essential parts of who we are," Sheetz spokesperson Nick Ruffner said.
"We take these allegations seriously. We have attempted to work with the EEOC for nearly eight years to find common ground and resolve this dispute."
The EEOC's allegations begin in August 2015, claiming unlawful employment practices through Sheetz's "practice of using criminal justice history information as a basis for declining to hire job applicants for all positions in violation of [Title VII of the Civil Rights Act of 1964]."
"(D)efendants have implemented a practice requiring that job applicants seeking to be hired for all job titles must pass defendants’ review of information about their criminal justice history, including but not limited to convictions,” the suit says.
Questions about criminal history are included on job applications and background checks follow if an applicant is offered a job. The job offers can be rescinded if Sheetz decides the applicant's history is too risky.
"Based on job applicants’ criminal justice history, including but not limited to convictions, defendants make a decision whether job applicants are deemed to have passed or failed the review," the suit says. "Defendants refuse to hire all job applicants who they deem to have failed their criminal justice history screening.”
The EEOC says this practice discriminates against minority candidates. Should a candidate with a criminal history commit an act of violence at Sheetz, the victim would be able to claim negligent hiring in an injury lawsuit against the company.
Gail Heriot, a professor at the University of San Diego School of Law and author of a 2020 paper for New York University’s Journal of Law and Liberty titled “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal," offered a critique of the EEOC’s interpretation of Title VII in that publication.
According to Heriot, the EEOC “interprets Title VII to require not just equal treatment, but near equal results.”
“Perhaps the most well-known recent example is the EEOC’s policy on job applicants with felony records, which essentially holds that employers are required to hire at least some of them," she wrote.
"The rationale behind the policy is that despite the fact that the overwhelming majority of Americans of all races are not felons, since proportionally more African-Americans than Americans of other races have felony convictions, they are disproportionately affected when employers prefer to hire applicants with clean criminal records.
“Note the obvious: A well-considered policy easing the transition of prisoners back into the mainstream may indeed be a good idea. But Title VII is not such a policy. It doesn’t say a word about prohibiting discrimination on the basis of criminal record. Yet somehow the EEOC has come to interpret Title VII to cover conviction status."
This makes employers who are not making their decisions based on race but rather the safety of customers and employees in violation of Title VII, she wrote.
Sheetz operates more than 600 convenience store locations in six states: Pennsylvania, West Virginia, Virginia, Maryland, Ohio and North Carolina.
The EEOC claims the allegedly unlawful hiring practices in question date back to 2015, but it is unknown how many applicants it believes were affected.
The EEOC found Black job applicants failed the company’s criminal background check screening and were denied employment at a rate of 14.5%, multiracial job seekers did so 13.5% of the time and Native Americans at a rate of 13% – meanwhile, conversely, the EEOC said this trend occurred with less than 8% of white applicants who were refused employment.
The group began investigating Sheetz after two unsuccessful job applicants filed complaints alleging employment discrimination – it led the EEOC to inform Sheetz it may be violating federal civil rights laws in 2022, which spurred pre-litigation settlement talks that ultimately failed. As a result, the instant suit was filed.
For separate counts of denial of hiring among Black, American Indian/Alaska Native and/or multiracial job applicants in violation of Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination on the basis of race, sex, religion and national origin, the plaintiff is seeking:
• Permanent injunctive relief preventing the defendants from engaging in race discrimination, including discriminatory denial of hire and use of particular employment practices for employment selection purposes that cause unlawful disparate impact against Black, American Indian/Alaska Native and/or multiracial job applicants;
• The defendants to create separate classes for each of the above-identified racial groups and provide appropriate back pay with pre-judgment interest, in amounts to be determined at trial and other affirmative relief necessary to eradicate the effects of their unlawful employment practices, including, but not limited to, instatement with retroactive seniority and benefits or front pay in lieu thereof and an additional amount to offset adverse tax consequences of payment of a lump sum monetary award in a single tax year that represents earnings that would have accrued over multiple tax years but for defendants’ unlawful employment practices;
• Such further relief as the Court deems necessary and proper in the public interest, and the costs of this action.
The plaintiff is represented by in-house counsel Debra Michele Lawrence, Ronald L. Phillips, Jenny Xia and Gregory A. Murray, in Baltimore, Md. and Pittsburgh.
U.S. District Court for the District of Maryland Northern Division case 1:24-cv-01123
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com