Judge Sides with EEOC on Discovery Question

About 3 min

Judge Sides with EEOC on Discovery Question


We know that lot of people in our audience cheer when judges slap down the Equal Employment Opportunity Commission (EEOC). That’s what tends to happen when people feel like David fighting Goliath. But according to a recent article on Law.com, the big guy just won a round.

Just to catch you up, both BMW and Dollar General are embroiled in similar battles with the Commission over their background screening practices. The EEOC claims both companies discriminated against black job applicants by using background checks in their hiring process. Both BMW and Dollar General tried to turn the question back on the EEOC by asking to see how the Commission uses background checks when looking for new hires themselves.

After an initial denial in magistrate court, U.S. District Judge Henry Herlong, Jr. agreed with BMW’s attorneys and ordered the EEOC to disclose their hiring practices. Dollar General’s effort did not go as well. U.S. District Judge Andrea Wood denied Dollar General’s request to look at the EEOC’s internal policies, saying they were not relevant to the defense. The judge did, however, tell the EEOC to turn over explanations of what kinds of background screening policies would be considered lawful in their opinion.

This fight is probably not over. As we mentioned, it took an appeal (or “a look by a different judge”?) to get BMW the ruling they wanted. In another case, Kaplan, Inc. v. EEOC, the Sixth Circuit Court of Appeals dismissed the Commission’s concerns over the use of credit checks on prospective employees with the judges explaining, “The EEOC sued the defendants for using the same type of background check that the EEOC itself uses.”

Your best defense against EEOC troubles in this area is having a clear policy on how and why background screening is used. You should also keep clear records, consult with legal counsel that specializes in employment law, and work with a screening partner that understands the importance of following the EEOC guidelines as a best practice.

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