EEOC Background Check Policy is Fair Game

Nick Fishman

If you’re a regular here in the EmployeeScreenIQ lounge, you know we’ve been closely following the EEOC case against Freeman Companies (filed in 2009) which alleges that their practice of denying employment based on one criminal charge or conviction and, or credit history is discriminatory.

In the latest development, Freeman asked the court to compel EEOC to produce their guidelines on how they use criminal background checks and credit reports as part of the employee background check process.  This was a similar request to the one made in the EEOC v. Kaplan Hire Education Corporation case.  EEOC argued that their policies and practices were irrelevant to the case and that the request was overly burdensome to the agency.

And just as another district court ruled in favor of the Kaplan request in May, they too ruled in favor of Freeman Companies.

According to Bloomberg BNA,  “Denying EEOC’s motion for a protective order, the court said defendant Freeman, a corporate events planner—also known as TFC Holding Co.—that EEOC alleges has engaged in a “pattern or practice” of discrimination against black, Hispanic, and male job applicants, may compel EEOC officials to testify about the agency’s own practices regarding use of criminal background checks or credit histories in hiring for government jobs.

EEOC argued that despite the broad discovery permitted under the Federal Rules of Civil Procedure, a protective order is appropriate because the proposed deposition would not seek information relevant to any claim or defense advanced by Freeman.

But U.S. Magistrate Judge Charles B. Day found that the deposition could produce information relevant to Freeman’s defense that its consideration of applicants’ criminal backgrounds and credit histories is job-related and consistent with business necessity.

‘[I]f [EEOC] uses hiring practices similar to those used by [Freeman], this fact may show the appropriateness of those practices, particularly because [EEOC] is the agency fighting unfair hiring practices,’ Day wrote.

The discovery conducted so far indicates that EEOC and Freeman “consider similar factors” in evaluating job applicants with criminal backgrounds, including the nature of the criminal offense, the seriousness of the conduct, and the particular job to be filled, the court added.

‘[EEOC]’s practices therefore are reasonably calculated to lead to the discovery of admissible evidence, even if those practices eventually may not be admissible at trial or ultimately dispositive to showing whether [Freeman] violated the law,’ the court said. ‘Further, [Freeman] is not required to accept [EEOC]’s position in its briefs that the two entities’ practices are dissimilar—[Freeman] is entitled to discovery on this issue as it relates to [Freeman]’s defense.'”

It seems to me that EEOC is being hypocritical in not readily sharing their pre-employment background screening policies.  After all, if their policies allow for the same hiring practices as Freeman employs, how can they make the argument for discriminatory practices?  I made the same argument this past Spring when EEOC published their new employment background check guidelines but exempted the federal government from compliance.

Here’s the thing: I wouldn’t blame EEOC for maintaining strict background screening guidelines.  They have to protect themselves from those who pose a threat to their mission.  However, I’d make the same argument for all employers.

Here’s a copy of the ruling.

Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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