EEOC Required by Court to Disclose Its Own Background Check Policies

December 12, 2014

A federal judge has ordered the Equal Opportunity Employment Commission to turn over the agency's background check policy to BMW Manufacturing Co. to see if there are similarities between the agency's policy and that of the company, a comparison the EEOC has resisted in the case.  U.S. District Judge Henry M. Herlong Jr. said BMW "is entitled to discovery on this issue as it relates to [its] defenses" and that the automaker is not required to accept EEOC's position in its briefs that the two entities' practices are dissimilar.  The EEOC's suit alleges BMW's use of criminal background checks for hiring has a disparate impact on minority job applicants.  However, the automaker argues among other defenses that its criminal background checks are job-related and consistent with business necessity, and that the information about EEOC's background check practices has a bearing on the automaker's defense in the case.  According to BMW, since the EEOC is holding itself out as a model employer, information about its own use of background checks in the hiring process could "provide useful guidance" on how employers can use background checks in an "appropriate, justifiable" manner.  "But it is also possible that the EEOC's policy contravenes or undermines its position in this case," BMW's brief continued, and "in this case and others in which the EEOC is attacking the legality of criminal background checks, litigants and the courts should know where the EEOC really stands."  The discovery decision comes in one of two closely watched background check cases the EEOC has filed against employers.