The EEOC is suing Freeman, an events marketing company, challenging the legitimacy of the company’s use of criminal background checks in hiring. Although the company’s screening process applies to all applicants, the EEOC claims the criminal checks have a discriminatory impact on Hispanic, Black and male applicants. Freeman defends them as job related and consistent with business necessity.
Now, the EEOC will have to explain why applicants for jobs at the EEOC have to undergo background checks that – you guessed it – look at criminal history. Magistrate Judge Charles B. Day of the U.S. District Court for the District of Maryland refused to grant the EEOC’s motion for a protective order that would have prevented the defendant from deposing an EEOC designee on this and other EEOC practices. In the decision, Judge Day wrote,
“Plaintiff [EEOC] claims that Plaintiff’s use of credit and criminal histories is not relevant because a business necessity defense ‘is employer and job-specific,’ and Defendant is the employer in question … However, 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.”
Deposition transcripts are not published except when used in support of a motion. If, as we anticipate, Freeman files a motion for summary judgment, we will let you know what the EEOC had to say about the government’s use of criminal histories in hiring.