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.
