BMW Flips Script on EEOC: Probes Agency’s Background Check Practices
September 23, 2014
What’s good for the goose is good for the gander. Or so thinks BMW, who has asked a federal court to compel the Equal Employment Opportunity Commission (EEOC) to produce documents relating to any policy, guideline, standard or practice used by the workplace bias watchdog in weighing the criminal conviction records of applicants looking to work for the agency.
You might recall that EEOC is suing BMW Manufacturing Co. LLC for their use over their use of criminal background checks in hiring which they allege discriminate against minorities. Here’s a quick recap.
The company re-screened existing employees who were reassigned to work in a different plant based on a change in contractors. Of the 645 workers who were re-screened, 55% were black and 45% were non-black. The complaint alleges that after screening the workers, BMW denied plant access to a total of 88 employees–around 14% of all employees screened. Of those 88 employees, 70 (80%) were black and 18 (20%) were non-black.
The complaint says “BMW also excludes from employment individuals with criminal convictions, involving “theft, dishonesty, and moral turpitude” and “makes no distinction between felony and misdemeanor convictions.”
Do As I Say, Not As I Do
According to Law360, BMW said its criminal conviction policy is justified by business necessity and argued that the EEOC is estopped, or precluded, from claiming the policy runs afoul of Title VII. The documents sought bear directly on BMW’s business necessity and estoppel defenses, the company argued.
“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,” BMW said. “And, 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.”
Discrimination or Sensible Hiring Practice?
That’s the question that the court is being asked resolve. And just like in the EEOC v. Kaplan and the EEOC v. Freeman cases, BMW is questioning why EEOC can conduct employment background checks as a reliable exercise in hiring risk management, but questions BMW’s right to do so. In the Kaplan case, the courts compelled EEOC the produce their guidelines, and I would find it hard to believe that BMW wouldn’t be successful as well.