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Another Check on the EEOC Background Check Challenge

We have written before about the EEOC’s increased focus on the potential disparate impact of employers’ use of background checks in screening applicants for employment, and of a recent federal appeals court decision that put up a significant road block in the EEOC’s efforts to prove disparate impact caused by credit checks as a screening tool. While not the basis of the court’s decision, the court did note that the EEOC ran the very same type of credit checks on its employees. Unfortunately for the EEOC, it is also facing additional road blocks because of its own policies: defendant employers are accusing the EEOC of throwing stones in the proverbial glass house.

The EEOC has been challenging aggressively employers’ use of criminal background checks as a screening tool. Specifically, the EEOC claims that employer use of criminal conviction background check policies constitutes an unlawful employment practice in violation of Title VII of the Civil Rights Act because the policies have, and continue to have, a disparate impact on black employees and applicants and is not job related and consistent with business necessity. In two notable cases, one against Dollar General, and the other against the carmaker BMW, the defendant employers requested that the EEOC produce its own policies concerning the use of background checks and criminal history in screening applicants for employment. In both cases, the EEOC refused to produce its policies arguing that the EEOC’s own practices and policies are irrelevant to whether the defendant employer policies caused a disparate impact upon African American applicants. The defendants argued that EEOC should be estopped from claiming that a policy is not job related or in furtherance of a business necessity if it has the same policies.

The court in the BMW case agreed with BMW and ordered the EEOC to produce its policies. The court noted that, while the EEOC’s polices may ultimately be irrelevant to determining whether BMW’s policies are unlawful, BMW was entitled to discovery on all matters related to its defense. The court in Dollar General has not yet ruled on its motion to compel the EEOC to produce its policies. It will be interesting to see how these cases are ultimately resolved, and whether the courts in either case will prevent the EEOC from challenging policies that it maintains.

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