I don’t actually have the answer to that. But someone else will soon – BMW Manufacturing Co., who is being sued by the EEOC regarding BMW’s use of criminal background checks.
As we’ve discussed in prior posts, the EEOC is being exceedingly (and sometimes unreasonably) aggressive in challenging employer’s criminal background check policies, claiming that such policies violate Title VII’s prohibition of discrimination on the basis of race because they have an illegal disparate impact on black applicants, who are more likely to have a criminal background. As we noted in “EEOC Slapdown Over Meritless Criminal Background Check Lawsuit,” a federal judge awarded 3/4 of a million dollars in attorneys’ fees and costs against the EEOC for pursuing a lawsuit against a company for refusing to hire felons, even after learning that the company did, in fact, hire felons. And in EEOC’s Attempt to Prohibit Use of Background Checks Rejected, we noted that the EEOC unsuccessfully went after an employer who, in fact, was utilizing criminal background checks appropriately in accordance with the EEOC’s own Guidance on “Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”
In the BMW case, the EEOC claims that BMW’s criminal check policy is not job related or consistent with business necessity. In defending against this claim, BMW has asked the EEOC to produce its own criminal background check policy for those who apply for jobs with the EEOC. The EEOC refused to produce the policy, arguing that it wasn’t relevant to whether BMW’s policy was legal. It stated that the positions for which it used its own policy were not similar to the positions in question at BMW. But the court noted that the EEOC did not identify the positions for which it conducts background checks, and that BMW “is not required to accept [the EEOC]’s position… that the two practices are dissimilar” without being able to make that determination itself. So the court ordered the EEOC to produce its own criminal background check policy.
I love the fact that the agency that is going after employers for their criminal background check policies is now being required to turn over its own policy. And wouldn’t it be interesting to see what it says and whether it meets the EEOC’s own Guidance? Turnabout is fair play, after all.