Role reversal! EEOC must disclose its own background check policy to the employer it’s suing

Monday kinda sucked for the EEOC.

The agency that made scrutiny of employee background checks a top priority under its current Strategic Enforcement Plan has been ordered by a federal court to turn over its own background check policy to an employer whom it is suing for a criminal background check policy that allegedly had a disparate impact on black employees.

*** smiles, grinds teeth, and inhales deeply ***

More after the jump…

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The employer had moved to compel to produce “[a]ll documents that constitute, contain, describe, reflect,mention, or refer or relate to any policy, guideline, standard, or practice utilized by the EEOC in assessing the criminal conviction record of applicants for employment with the EEOC.”

The EEOC argued that its own background check policy did not bear on the claims and defenses in this case because the positions for which the EEOC utilized its policy were not similar to the positions at issue in this litigation. 

In granting the employer’s motion to compel, the court concluded that the EEOC policies may be admissible or relevant and the employer did not have the accept the EEOC’s say-so that they weren’t. (You may remember that when the Sixth Circuit put the EEOC on blast in a similar lawsuit against Kaplan, it criticized the EEOC for attacking “the same type of background check that the EEOC itself uses.”). Further, the Court found that production should not be burdensome to the EEOC, and saw no harm to the EEOC in requiring it to produce them.

Not exactly 4chan material, but I wonder if a copy of this policy leaks on the internet. Not that I’m advocating. 

Anyway, here is a copy of the court’s opinion. Here is the “employer-branding” advice I gave to HR professionals yesterday as the featured guest for a SHRM Twitter chat. (Not exactly a shining business development moment for yours truly). And here is where you can vote for The Employer Handbook in the Labor and Employment category of the ABA Blawg 100.

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