Court sets back EEOC in fight over use of background checks

Posted by Jeanine Gagliardi on Wed, 01/07/2015 - 05:00

We posted about a development that occurred in the EEOC’s suit against BMW arising out of BMW’s use of criminal background checks in the hiring process. BMW sought discovery concerning the EEOC’s use of criminal background checks in its own hiring. A magistrate judge overseeing discovery held that the EEOC did not have to disclose whether and what it does to check backgrounds in hiring. That decision did not stand long.

BMW objected to the magistrate judge’s ruling, resulting in a review by the U.S. District Court for the District of South Carolina. The District Court reversed the magistrate judge’s decision and entered an order forcing the EEOC to produce materials concerning its use of criminal background checks.

In its order, the reviewing judge criticized the EEOC for trying to withhold the information on the ground that it is not relevant. The EEOC argued that the positions for which it used criminal background checks were dissimilar from the positions for which BMW used criminal background checks. At the same time, the EEOC failed to disclose information concerning the positions or its background check policies. Rather than be required to take the EEOC’s word for its practices as dissimilar to BMW’s, the District Court held that BMW is entitled to take discovery on the issue to see for itself.

This is a victory for employers, but it is not a dispositive one. Just because the EEOC must produce information concerning its use of background checks in discovery does not mean that the information will be admissible at trial or, if it is, that it will be sufficient for employers to succeed on the merits. Employers remain subject to suits by the EEOC second guessing their use of background checks. The hope is that the EEOC will reconsider its aggressive stance toward employers who use background checks for legitimate reasons.

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