EEOC wins latest battle against employers using background checks in hiring.

Posted by Edward Sharkey on Fri, 10/24/2014 - 04:00

Chalk one up for the EEOC in its campaign to target employers for using background checks in hiring - all while the EEOC uses background checks to hire its own employees. In the latest case, the EEOC sued BMW for using criminal background checks to make hiring decisions. BMW sought discovery into the EEOC’s use of background checks on the theory that what the EEOC does in hiring should be evidence of what is reasonable. The magistrate judge overseeing discovery rejected BMW’s motion to compel.

The judge said she was “not convinced the information sought is relevant to BMW's defenses.” She explained that, “BMW has failed to explain how the production of the EEOC's conviction policy contributes to its ability to prove that BMW's criminal conviction policy at issue is job-related and/or is consistent with a stated business necessity.”

Not everyone has a hard time seeing the logic. In a similar case filed by the EEOC against a Maryland business, a different federal court granted the defendant access to the EEOC’s hiring practices. The judge reasoned that:

"If [the EEOC] uses hiring practices similar to those used by Defendant, this fact may show the appropriateness of those practices, particularly because Plaintiff is the agency fighting unfair hiring practices."

The Maryland court ultimately summarily dismissed that lawsuit because the EEOC did not proffer reliable evidence that the defendant’s practices had a discriminatory impact.

The relative recency of the EEOC’s lawsuits, and the varied treatment in the courts, makes this a difficult issue to handicap. The EEOC has issued enforcement guidance that should be read by any business using background checks. It advises that the only way to avoid a disparate impact claim is to develop a multi-faceted “targeted screen” that assures that any policy, as applied in each instance, is a business necessity.

Certainly, any business using background checks should review the guidance and document a substantive assessment of its policy with an eye toward making it consistent with business necessity. Then, the business should adopt a practice that assures the policy, as employed in each case, is substantively consistent with that necessity.

With a subjective standard like this, however, every business will always remain subject to second guessing by the EEOC. While a business may reasonably conclude that business necessity precludes it from hiring violent felons, the EEOC may look at the nature of the business and disagree. And the type and sensitivity of work varies across industries and across employers within industries.

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