Legal

EEOC Should Do as it Does, Not as it Says

By Jon Hyman

Sep. 24, 2014

Last June, the Equal Employment Opportunity Commission sued BMW, claiming that the company’s policy of automatically disqualifying from employment anyone with certain felony convictions disparately impacted African-Americans. Unfortunately for the EEOC, like BMW, it also uses criminal background checks to screen applicants.

BMW has filed a motion to compel (copy here, h/t: Nick Fishman, at the EmployeeScreen IQ Blog), asking the court to require the EEOC to disclose in discovery its own policy for criminal background checks in hiring. BMW argues that the information is necessary to develop defenses to the Agency’s discrimination claim:

The extent to which the EEOC excludes individuals from employment based on their criminal background assists in determining the meaning of “business necessity” because the actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces. Likewise, the similarities between the EEOC’s and BMW’s policies bear on whether the EEOC may be stopped from complaining about BMW’s use of policies and procedures that the EEOC also uses.

This argument is not novel. At least two other federal courts have compelled the EEOC to turn over similar information in similar cases (here and here). The words of one of those courts is particularly instructive:

If Plaintiff 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.… Further, Defendant is not required to accept Plaintiff’s position in its briefs that the two entities’ practices are dissimilar – Defendant is entitled to discovery on this issue as it relates to Defendant’s defense.

Intellectual dishonesty is offensive. If the EEOC has policies that screen-out certain felons, then the EEOC should not publish enforcement guidance that limits this practice, and should not pursue litigation that challenges this practice.

What’s good for the EEOC’s goose should be good for corporate America’s gander. The fact that the EEOC has fought so hard to keep this information away from the eyes of the companies it is suing suggests that there is fire to go along with the EEOC’s smoke. Bravo to these employers for attempting to keep the agency honest.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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