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EEOC Sue Sheetz for Discriminatory Hiring Practices

On April 17, 2024, the Equal Employment Opportunity Commission filed a complaint against Sheetz, alleging it has and continues to commit race discrimination against job applicants in violation of federal law through its hiring practices. The complaint alleges that since at least 2015, Sheetz has engaged in “a particular employment practice of using criminal justice history information as a basis for declining to hire job applicants for all positions in violation of” Title VII. The complaint continues that Sheetz’ specific use of criminal justice history information in its hiring process creates a disparate impact on Black, American Indian/Alaska Native, and Multiracial job applicants who are not hired for available positions at Sheetz due to their race.

The complained of hiring practice requires all job applicants to pass Sheetz’ review of the applicant’s criminal justice history information, which includes convictions. Job applicants answer questions about their criminal justice history on the job application form. This information is provided to third party vendors to perform a background check which generates a report to be used by Sheetz staff for hiring decisions. Sheetz allegedly “refuses to hire all job applicants who they deem to have failed their criminal justice history screening.” Sheetz’ hiring practices do not require their staff to contact job applicants for additional information about their criminal justice history nor does Sheetz’ hiring practices require Sheetz staff to notify the job applicant that they have been denied employment due to their criminal justice history. Under Sheetz’ hiring policies, job applicants are not given the opportunity to appeal or seek reconsideration of the decision to deny their employment on the basis of criminal justice history. Furthermore, the Sheetz’ staff decisions to deny employment based on the applicant’s criminal justice history is not subject to managerial review beyond the initial screening.

The complaint asserts that this hiring practice screens out, and therefore denies employment to, Black, Native American/Alaska Natives, and Multiracial applicants at a higher rate than White applicants (specifically 14.5% for Black applicants, 13% for Native American/Alaska Native applicants, and 13.5% for Multiracial applicants versus 8% for White applicants).

The EEOC initiated this lawsuit after failed conciliation efforts in 2023. On behalf of the class of aggrieved Black, Native American/Alaska Native, and Multiracial job applicants, the EEOC seeks a permanent injunction to prevent Sheetz from continuing the allegedly discriminatory hiring practice, an order requiring Sheetz to implement equal employment opportunity practices for the aggrieved class of job applicants, and an award of back pay and other employment benefits the job applicants would have been entitled to but for being unlawfully denied employment based on their race.

While this lawsuit is still in the early pleading stage, with no response yet filed by Sheetz, it is a warning to employers who fall under the purview of Title VII and use criminal justice history in their hiring process. “Disparate impact” claims under Title VII allow employees to assert a claim of employment discrimination without proving discriminatory intent by the employer. A plaintiff-employee pursuing a disparate impact claim for employment discrimination must first prove that the subject employment practice discriminates against members of a protected class; then the burden shifts to the defendant-employer to overcome the disparate impact by showing the employment practice bears a “manifest relationship” to job performance. El v. SEPTA, 479 F.3d 232, 239 (3d Cir. 2007). This lawsuit indicates that federal anti-discrimination law will not tolerate employers’ use of criminal justice history in their hiring process that results in the disproportionate screening out of job applicants in protected classes, at least without a more thorough vetting / follow up procedure. Moreover, this lawsuit suggests that employers should use criminal justice history in a nuanced and collaborative manner that allows for more individualized consideration of the applicant to avoid any unlawful, albeit unintentional, discriminatory impact on protected classes.