FIFTH CIRCUIT SLAMS THE DOOR ON CRIMINAL RECORD DISCRIMINATION LAWSUIT

The United States Court of Appeals for the Fifth Circuit has rejected an unsuccessful job applicant’s claim that he was denied employment because of his criminal record.  The Plaintiff in Noris Rogers v. Pearland School District unsuccessfully argued that his history of felony convictions for drug offenses, including the sale of heroin, amounted to race discrimination under a disparate impact theory of liability.

In recent years, the Equal Employment Opportunity Commission (“EEOC”) has filed a number of high-profile lawsuits against companies, taking the position that utilizing criminal background checks in making employment decisions may be a violation of Title VII of the Civil Rights Act of 1964.  The stated rationale for the EEOC’s stance is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects, or has a “disparate impact” on African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction. 

In Rogers, the African-American Plaintiff applied for a job as a master electrician for a Texas school district.  On the application, Rogers responded “No” to all questions regarding criminal history, including whether he had ever been convicted of or pled guilty to a criminal offense, and gave his consent for a criminal background check.  The background check revealed that Rogers had multiple felony drug convictions.  When asked by the school district’s human resources director about the incorrect information, Rogers became angry, raised his voice and had to be asked to leave.  The school district later hired an African-American male for the position.

A few months later, the successful applicant resigned and the position again became available.  Rogers reapplied, this time disclosing his criminal record on the application.  The school district did not hire Rogers because of his “lack of candor” in disclosing his criminal record the first time.  In his lawsuit, Plaintiff claimed the real reason was race discrimination based on his drug arrests, and not on the fact he lied on his job application.  The Texas trial court granted the school district’s summary judgment motion, dismissing the case, and Rogers appealed the ruling to the Fifth Circuit.

In holding that the trial court was correct in dismissing the case, the Fifth Circuit rejected Rogers’ claim that the School District maintains a policy of “excluding from consideration for employment all persons who have been convicted of a felony.”While the Fifth Circuit noted that under the school district’s actual policy, a felony conviction would be an adverse factor in an application, it is  “not an automatic bar to employment.” In addition, the record shows that the School District follows procedures that require the opportunity for an in-person meeting with any applicant to discuss the applicant’s criminal history. The record also shows that the School District recently hired several employees who had felony and misdemeanor convictions.  The Court discounted Rogers’ comparator of a white school district employee who failed to disclose on a job application a misdemeanor charge of marihuana possession thirty years earlier.

While not discussed in detail in the Fifth Circuit’s Opinion, it appears the school district’s policy was in line with the recently updated EEOC guidelines, which put the burden on employers to develop screening guidelines to individually assess each applicant/employee to determine whether a criminal history may be used as a factor in any employment decision.  Under the EEOC’s guidelines, for an employer to avoid Title VII disparate impact liability for excluding an individual with a criminal record, the employers must show that any reliance on a criminal history is job related and consistent with business necessity.  In doing so, an employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought. 

The case highlights the need for employers to have such screening guidelines in place, proper documentation to support any employment decision based on a criminal history, and not to have any blanket-ban on employing individual with a criminal history.

“♫ Sign, Sign, Everywhere a Sign ♪”: The EEOC and DOL Sing a New Tune on Required Postings

 Those old enough  may remember the 1970 one-hit-wonder “Signs” by the rock group Five Man Electric Band, with its chorus of:

Sign, sign, everywhere a sign

Blockin’ out the scenery, breakin’ my mind

Do this, don’t do that, can’t you read the sign?

 In some recent announcements, the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) are calling the tune on employer requirements for posting employee notices of their rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the Family and Medical Leave Act (“FMLA”)  Unlike the 1970 song, the requirements do not address a protected class of “long haired freaky people”, but do impose financial penalties for noncompliance.

Effective July 5, 2016, the EEOC’s new rule more than doubles the maximum fine against employers for not complying with the posting requirements under Title VII, the ADA and GINA.  Employers will now face a maximum penalty of $525 per violation, up from $210.  The penalty last changed in 2014, when the EEOC increased it from $110 to $220.

Under the law, employers with 15 or more employees are required to post a notice describing their rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, or genetic information.  These Equal Employment Opportunity (“EEO”) posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.  In addition to physically posting the notices, the EEOC encourages employers also to post similar electronic notices on their internal websites in a conspicuous location.  However, such an electronic posting does not fulfill the requirement of an actual physical posting in the workplace.  If employees do not understand or read English, the employer must provide notice in the appropriate language.

Employers frequently get themselves in trouble for perfunctorily putting these posters where they cannot be readily seen by employees, or not posting them at all.  When an EEOC investigator stops by, often the first thing they inquire about is the EEO poster, and being out of compliance is not an auspicious way to begin an EEOC investigation.  Printable posters in English and other languages are available from the EEOC website, although commercially purchased posters also will meet the requirement.

In other posting news, the DOL recently issued a new FMLA poster to replace the previous one required to be displayed by employers.  For the time being, the DOL is not requiring employers to replace their existing posters until further notice.  However, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster, and if not, update them accordingly.  As with the posting requirements for the EEO posters, employers are required to post the FMLA posters in a conspicuous place in the workplace, and can face monetary fines for noncompliance.  For more detailed information, the DOL’s Wage and Hour Division has put out a publication entitled The Employer’s Guide to the Family Medical Leave Act.

 



RELIGIOUS DISCRIMINATION….OR INFECTIOUS INSUBORDINATION?

The Equal Employment Opportunity Commission (“EEOC”) has filed suit against a Massachusetts hospital, alleging it discriminated against an employee on the basis of religion when it fired her for not complying with a facemask requirement after she declined a flu shot for religious reasons.  EEOC v. Baystate Med. Ctr., Inc. raises unique issues of what constitutes a reasonable accommodation to religious practices under Title VII of the Civil Rights Act of 1964 (“Title VII)”, as well as the scope of what is an undue hardship for employers, especially in the context of a health care provider.

In the federal lawsuit filed on June 2, 2016, the EEOC alleges that Baystate Medical Center fired administrative employee Stephanie Clarke after she sought a religious accommodation from the hospital’s mandatory employee immunization policy.  The hospital had an accommodation policy for employees who refused flu shots for religious reasons, which required such employees to wear a surgical facemask while at work.  The hospital suspended Clark without pay after she failed to wear the mask consistently, complaining she was not able to adequately communicate as part of her job while wearing the mask, which covered her nose and mouth.  She was told that she could not return to work until she either received an immunization or wore the mask at all times.  When Clark declined either option on the basis of a religious objection, the hospital treated her response as a job resignation.

Title VII prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.  For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.

What raises the not-so-clear issues in this lawsuit is that Clark was not a healthcare worker, but instead an administrative talent acquisition consultant, who, while she worked at the hospital, had no direct contact with patients.  In public statements, the hospital has asserted that its policy of requiring employee immunizations or alternatively, for objecting employee to wear a facemask, is a reasonable measure to ensure patient safety.  While it is anticipated the EEOC will argue that Clark’s lack of patient contact renders the hospital’s actions unreasonable, it is as likely that the hospital could argue that because of the infectious nature of the flu, a non-healthcare worker present in the hospital could infect other employees who ultimately would have contact with patients, including those with weakened immune systems.  

  

An issue that also is likely to arise is whether wearing a facemask is actually an effective reasonable accommodation for purposes of patient safety.  The federal Centers for Disease Control have noted that it is unclear how well masks work to prevent transmission of the flu, or to what extent masks actually block or filter viruses from the air.  However, some experts note that they do offer some level of protection.  As such, the case also will place before the federal court the issue of whether a healthcare facility should be given deference in determining policies for patient safety, and whether having to modify such policies constitutes an undue hardship under Title VII.

Whether Clark’s objection to flu shots is a sincerely held religious practice is unlikely to become an issue in the case.  Title VII construes religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice.  In the EEOC lawsuit, it infers that Clark’s objection is based on her personal interpretation of the Bible. 

However, as previously noted in The Employee with the Dragon Tattoo, despite such judicial deference, on occasion a court will find that an employee’s claimed religious practice simply does not pass the smell test.  In Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4^th Dist.), the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” was not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours. 

Message to Employers: “We’re from the Government . . . and we’re not here to help!”

Employers can expect some new challenges in responding to EEOC Charges and with eight months to go before a new administration, the White House has announced it is targeting the use of non-compete agreements, commonly used by many American employers to safeguard business interests and protect trade secrets and confidential information.  Employers also are facing a December 1, 2016 deadline to decide how to address the Department of Labor’s final Rule on the Fair Labor Standard Act’s “white collar exemption”, which has more than doubled the salary requirement employers must meet to claim the exemption from employee overtime.

EEOC Issues Standards for Employer Position Statements

The Equal Employment Opportunity Commission (“EEOC”) has issued first-time-ever national standards and procedures it expects employers to follow in responding to an employee EEOC Charge of Discrimination.  While some of the procedures are nothing new, and reflect long-standing practices, one aspect should cause employers and their legal counsel concern.

The new guidelines dictate that employers provide very detailed information and specific information, which is comparable to information a plaintiff’s attorney would typically request in litigation discovery.  In the new procedures, the EEOC explicitly states it  will provide a copy of the employer’s EEOC Response and any attached documents to the Charging employee at their request, and allow them to file a rebuttal statement, which will not be provided to the employer.  In essence, the EEOC will facilitate the employee’s pre-litigation discovery, but leave the employer in the dark.  This presents a quandary for employers.  Typically, you want to present your strongest arguments in your position statement.  However, knowing that particular information and legal theories presented to the EEOC will be seen by the employee and his or her attorney raises the issue of how much to include, knowing that litigation is likely to follow the filing of the Charge.  The EEOC procedures give no basis as to why the employer is not allowed access to the employee’s rebuttal statement.

The procedures also require that if any reference to trade secrets or confidential business or financial information is made in the employer’s position statement, copies of such documents must be provided as separate attachments.  The procedures note the “EEOC will review attachments designated as confidential and consider the justification provided, as the agency will not condone blanket or unsupported assertions of confidentiality.”  What this means is that the EEOC will decide whether it considers the documents confidential, and if it does not, such documents could be provided to the Charging employee and their attorney.  The procedures also provide a much stricter standard for granting employers extensions of time to submit their position statements.  The EEOC now requires that all position statements and documents be filed digitally via an EEOC Internet portal.

White House Targets Non-Compete Agreements

Earlier this month, the White House released a report highly critical of the use of non-compete agreements by American employers, and listed what it considered the seven (7) problem areas of non-compete agreements:  

1. Workers who are unlikely to possess trade secrets (i.e., low wage workers) who are nevertheless required to sign non-competes
2. Workers who are only asked to sign a non-compete after accepting a job offer (thereby reducing their bargaining power)
3. The lack of clarity to workers regarding the meaning and implications of the non-compete
4. Overly broad non-compete agreements
5. No consideration for non-compete beyond continued employment
6. Non-competes that prevent workers from finding new work - even when they were fired without cause
7. How non-competes restrict consumer choice

While such restrictive employment covenants are generally not favored by the courts, they will be enforced if the terms of the agreement are reasonable under the particular circumstances.  Generally, there are three requirements: (1) the employer has a valid interest to protect; (2) the geographic restriction is not overly broad; and (3) a reasonable time limit is given.  The employer bears the burden of proving the reasonableness of the agreement.  The reason these types of agreements are construed very narrowly is that most courts recognize that an employer is not entitled to protection against ordinary competition from a departing employee.  Non-compete agreements can be valuable tools to protect an employer’s legitimate business interests, but generally, it is inadvisable to have low level employees sign such agreements, because they are typically not going to possess the confidential information that would warrant enforcement of the agreement.

The White House cannot take any direct action, because such agreements are governed under the individual laws of each state, and are not governed by federal law.  The Report indicates that the Administration “will identify key areas where implementation and enforcement of non-competes may present issues, examine promising practices in states, and identify the best approaches for policy reform”, suggesting plans to lobby state legislators and policymakers in the individual states.

DOL Final Rule for FLSA White Collar Exemption

After significant delay, the U.S. Department of Labor (DOL”) announced its final rule updating the regulations applicable to white collar exemptions, which will go into effect December 1, 2016. The DOL estimates that, absent employer action, the change will entitle more than 4 million white collar workers currently classified as exempt to overtime eligibility.

The Fair Labor Standards Act (“FLSA”) generally requires that most employees be paid at least minimum wage for all hours worked and overtime pay for all hours worked over 40 hours in a workweek. However, employees employed as bona fide executive, administrative and (most) professional (“white collar”) employees are exempt from both minimum wage and overtime pay if they meet two key requirements: are paid more than a specified weekly salary on a fixed salary or “fee” basis and perform certain job duties. 

The most significant change in the final rules is that it more than doubles the required salary to $913 per week, or $47,476 annually.  The previous standard was $455 per week, or $23,660 annually. The new rule establishes a mechanism whereby the salary and compensation levels will be updated every three years, with the first update taking effect January 1, 2020.  Encompassed within the white collar exemptions are highly compensated employees who earn a higher total annual compensation level than the other categories of white collar employees and satisfy a minimal duties test. Currently, the minimum annual compensation threshold for highly compensated employees is $100,000. The final rule increases this threshold to $134,004.

In the U.S. Department of Labor Blog, the DOL has offered the following suggestions to employers on how to adapt to the upcoming new requirements:•Raise salary and keep the employee exempt from overtime: Employers may choose to raise the salaries of employees to at or above the salary level to maintain their exempt status, if those employees meet the duties test (that is, the duties are truly those of an executive, administrative or professional employee). This option works for employees who have salaries close to the new salary level and regularly work overtime.

• Raise salary and keep the employee exempt from overtime: Employers may choose to raise the salaries of employees to at or above the salary level to maintain their exempt status, if those employees meet the duties test (that is, the duties are truly those of an executive, administrative or professional employee). This option works for employees who have salaries close to the new salary level and regularly work overtime.
• Pay overtime in addition to the employee’s current salary when necessary: Employers also can continue to pay their newly overtime-eligible employees the same salary, and pay them overtime whenever they work more than 40 hours in a week. This approach works for employees who work 40 hours or fewer in a typical workweek, but have occasional spikes that require overtime for which employers can plan and budget the extra pay during those periods. 
• Evaluate and realign hours and staff workload: Employers can ensure that workload distribution, time and staffing levels are all managed appropriately for their white-collar workers who earn below the salary threshold. For example, employers may hire additional workers.

Despite the happy talk from the DOL, the business community is highly critical of the new final rule.  Lower-wage business and service industries call the move a business and career killer, with limited to no benefit to the employees it is supposed to help.  According to the National Retail Federation (“NRF”), instead of increasing salaries to raise workers above the overtime threshold, many businesses will simply reclassify professionals as hourly workers, removing their existing perks, flexibility, and benefits. Likewise, the NRF expects most businesses will pay the required overtime, but simply cut base pay to compensate for the cost.

In light of broad reach of the dramatically increased salary threshold, as well as the virtually automatic increase every three years, it is imperative that employers begin analyzing their salaried exempt workforce to prepare for compliance by December 1, 2016, if they have not done so already.

“Sign of the Beast” Lawsuit - Part II

I’ll admit the title of this post sounds like the title of a bad horror movie, and for the owners of a West Virginia coal mine, a religious discrimination/failure to accommodate lawsuit is turning into a real-life legal horror show. The federal judge in the case last week granted the Equal Employment Opportunity Commission’s ("EEOC") motion for additional damages, bringing the verdict against the employer to $586,860 in lost wages, benefits and compensatory damages.

In my previous post, "Sign of the Beast" Hand Scanning Case Provides Valuable Lesson to Employers, I related how an employer’s use of a high-tech hand scanning device to keep track of payroll and stay in compliance with the Fair Labor Standards Act ("FLSA") resulted in a large dollar jury verdict in a religious discrimination case, as well as continued scrutiny from the Equal Employment Opportunity Commission ("EEOC"). [EEOC v. Consol Energy, Inc., N.D. W.Va.]

 

One employee, Beverly H.R. Butcher Jr., told his supervisor that he could not comply with the hand scanning policy because he believed the technology has a connection to the "mark of the beast" and the Antichrist, as alluded to in the Book of Revelation in the New Testament of the Bible. As a proposed reasonable accommodation, the company offered to allow Butcher to scan his left hand with his palm up, which he declined. Butcher resigned, stating that he was doing so involuntarily. He brought his complaint to the EEOC, which filed suit on his behalf against the company, alleging that Consol had violated Title VII by failing to reasonably accommodate Butcher’s sincerely held religious beliefs.

 

In January 2015, a jury ruled in Butcher’s favor and awarded $150,000.00 in compensatory damages. However, that was not the end of the case. In a post-trial motion, the EEOC sought an additional $413,000 in front and back pay.

 

On August 21, 2015, U.S. District Judge Frederick P. Stamp awarded Butcher an additional $436,860.74 in front and back pay, even more than the EEOC had originally requested. The Judge also ordered a three year injunction against Consol Energy, prohibiting the company from denying reasonable accommodations regarding the use of the hand scanning system. The Court also ordered that the company provide training to employees on religious accommodation. Not surprisingly, the company plans to appeal the verdict in the case.

 

This case should serve as a serious wake-up call to employers about recognizing religious accommodation issues under Title VII, and engaging in the interactive process of reaching an accommodation if it can be done without undue hardship. Just from the facts of this case, it’s clear no real attempt was made to accommodate Butcher, and it does not appear that the company took the issue seriously.

 

The need for employers to train supervisors on religious accommodation was recently highlighted in the recent Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc. In my post Ignorance is not Bliss: Religious Discrimination after the Supreme Court’s Decision in EEOC v. Abercrombie & Fitch Stores, I discussed how the Court’s ruling now imposes a heightened standard on employers, and how the EEOC’s new guidelines for accommodating religious garb can serve as a roadmap to hopefully avoiding the type of lawsuit and verdict discussed above.

 

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com

Settlement in HIV Termination Lawsuit Highlights Continuing Employer Confusion over ADA

A nationwide manufacturer and distributor of fruit juice will pay $125,000 to settle a lawsuit brought by the EEOC on behalf of an employee who was terminated after the company learned he was HIV-positive. [EEOC v. Gregory Packaging, Inc. (N.D. Ga.]  The fact that the employer specifically told the man he was being terminated because of his HIV status highlights continuing employer confusion over the Americans with Disabilities Act (“ADA”), even twenty-five years after its passage, and especially as it relates to employees with HIV/AIDS.

The plaintiff in the case was employed as a machine operator at the Newnan, Georgia facility of Gregory Packaging, Inc., a company that sells juice products to school districts and medical institutions. When the employee developed a skin rash unrelated to his HIV, rumors began to circulate among other employees that the employee’s rash was the result of AIDS.  In an effort to quash the rumors, the employee informed his supervisor that while he did have HIV, the skin condition was unrelated, and there was no danger of him transmitting HIV to food products or co-workers.  Despite his good job performance, and no evidence of a health risk, the employee was terminated approximately a month later.  He was informed the reason he was being fired was because he had HIV.

The employee declined a separation agreement offered by the company, which included a release of claims. The Equal Employment Opportunity Commission (“EEOC”) subsequently brought a lawsuit on the employee’s behalf, alleging violations of the ADA and similar claims brought under Georgia state law.  Despite the company’s early efforts to fight the lawsuit, the case was settled pursuant to a court-approved consent order, which provided for the $125,000 payment by the New Jersey based company, and required equal employment opportunity training and reporting to the EEOC.

What is most surprising about this case, is that even before the ADA’s expansion under the Americans with Disabilities Amendment Act (“ADAAA”), it was generally established that a person with HIV/AIDS met the Act’s definition of an individual with a disability.  Furthermore, as noted in EEOC guidelines, even those who are regarded as having HIV/AIDS are protected under the Act, even if they do not have the disease.  The example given by the EEOC is a person being fired on the basis of a rumor that he had AIDS, even though he was not infected.

Employers involved in the food and restaurant industry are often at the focus of these types of lawsuits. As was the case at Gregory’s Georgia facility, the situation is often fueled and exacerbated  by rumors spread by co-workers or customers, and fears of HIV/AIDS being transmitted through an employee’s contact with food products.   

According to the Department of Health and Human Services, HIV/AIDS is not a disease that can be transmitted through food handling. Diseases that can be transmitted by an infected person handling food include (1) noroviruses, (2) the Hepatitis A virus, (3) Salmonella, (4) Shigella, (5) Staphylococcus, and Streptococcus.  For more detailed information, employers in the food service/restaurant industry can find guidance through the EEOC publication “How to Comply with the Americans withDisabilities Act: A Guide for Restaurants and Other Food Service Employers.”

Employer’s also need to be aware that in the context of HIV/AIDS, the ADA also protects employees who do not have the disease, but have an association or relationship with someone who does.  In the EEOC guidelines, examples of employment discrimination against persons with HIV or AIDS include:

•         An automobile manufacturing company that had a blanket policy of refusing to hire anyone with HIV or AIDS.

•         An airline that extended an offer to a job applicant and then rescinded the offer after the employer discovered (during the post-offer physical) that the applicant had HIV.

•         A restaurant that fired a waitress after learning that the waitress had HIV.

•         A university that fired a physical education instructor after learning that the instructor’s boyfriend had AIDS.

•         A County tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.

•         A retail store that generally rotated all sales associates between the sales floor (where they could earn commissions) and the stock room (where they processed merchandise) except for the sales associate who was rumored to have HIV, who was never rotated to the floor.

•         A call center employee who was denied a promotion to shift manager because his employer believed the employee would be unreliable since he had AIDS.

•         A company that contracted with an insurance company that had a cap on health insurance benefits provided to employees for HIV-related complications, but not on other health insurance benefits.

While the ADA does include a “direct threat” defense in regard to employees who pose a significant risk of substantial harm to the health and safety of the employee or others, the defense  requires medical or other objective evidence, as opposed to subjective beliefs or assumptions based on stereotypes.  However, the take-away from this case is that proper training of supervisors in addressing ADA issues is a much better and less expensive option than having to establish defenses after a suit has been filed.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com





EEOC Says “Do as I Say” and “Pay no Attention to What I Do” in Background Check Battle

            In its litigation offensive against employers over the use of criminal/credit background checks in making employment decisions, the federal agency is getting put on the spot over its own employment practices in two high profile cases. 
 

            In earlier posts, I discussed the EEOC’s lawsuits against national retailer Dollar General, and car maker BMW Manufacturing Co., alleging that the employers’ criminal background check policies systematically discriminated against African-American job applicants or existing employees.
 

            In the Dollar General case, the EEOC is currently fighting a motion to compel filed by the retailer, in which Dollar General is asking a U.S. District Court in Illinois to force the anti-discrimination agency to disclose its own policies on using background checks and criminal histories in employment decisions.  In a South Carolina District Court, BMW also has filed a similar motion to compel, seeking all of the EEOC’s documents regarding its policies and guidelines for evaluating the criminal records of individuals applying to work for the federal agency.
 

            Not surprisingly, the EEOC is arguing to the Courts in both cases that it should not be required to turn over the information, claiming the agency’s own practices are irrelevant to the allegations against the two companies.  In response, BMW, echoing an earlier response by Dollar General, noted to the Court:
 

This is not the first time that the EEOC has refused to provide information about its own employee screening policies and procedures while claiming that the policies and procedures of others are        unlawful . . . [a]nd, in all cases, courts have concluded that the information is relevant to issues of business necessity and estoppel and have compelled the EEOC to provide it.

The other cases BMW and Dollar General are referring to likely include the crushing defeat handed to the EEOC earlier this year by the United States Court of Appeals in Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation.  In that case the EEOC sued the educational services company for implementing credit checks after discovering that some employees had stolen student’s financial aid payments. The credit check policy applied to job applicants seeking positions where they would have access to cash or financial information. The EEOC claimed the policy disproportionally impacted “more African-American applicants than white applicants.”
 

In its affirmation of the district court’s grant of summary judgment in favor of the company, the Sixth Circuit blasted the EEOC’s disparate impact theory of liability. In ruling against the EEOC, the Sixth Circuit noted that pursuant to its own personnel handbook, the EEOC runs the very same type of credit checks on its employees because “[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations.” The court specifically and wryly noted that this was the very same reason that Kaplan adopted its policy.