The Equal Employment Opportunity Commission told a district court that it should not have to reveal its own policies regarding criminal background checks because that information is not relevant to the discrimination cases it files against private companies.
The EEOC said it doesn’t matter if there are any similarities between its own policies and the ones it says are discriminatory because a different legal standard applies to government agencies.
“It is untenable for [the] defendant to argue that EEOC’s policies are relevant because they somehow establish the proper legal standard to be applied to the defendant’s conduct in this case,” the agency said in a filing to the District Court for South Carolina.
The document was in response to a discovery motion by BMW Manufacturing. The EEOC charged last year that the Spartanburg, S.C., carmaker’s blanket policy of rejecting applicants based on their criminal records was racially discriminatory because it had a “disparate impact” on African-Americans.
BMW Manufacturing responded by demanding to know exactly how EEOC deals with applicants in similar situations. “[T]he actual practices of the EEOC, as the agency charged with administering the statutory scheme, inform the meaning of the statutes and regulations it enforces,” the company said in a Sept. 17 legal filing.
A spokesman for BMW did not respond to a request for comment.
EEOC spokeswoman Kimberly Smith-Brown said the agency would let its legal brief speak for itself.
“[The] defendant … argues that EEOC’s hiring practices are relevant and thus discoverable because said practices bear on whether defendant can establish its business necessity defense. In other words, if the EEOC is doing it, it must be lawful. This position is untenable because EEOC’s internal hiring practices do not establish the law or the legality of defendant’s hiring practices,” the brief says.
That the EEOC uses a policy, set by the federal Office of Personnel Management, that screens out at least some applicants based on their criminal history is not disputed. The specifics of it are not public, though, and the EEOC wants to keep it that way.
However, the agency broadly outlined some of its practices in the filing Monday, indicating that it considers criminal backgrounds on a case-by-case basis. It takes into account such factors as the amount of time that has lapsed since any convictions, the person’s age at the time as well as any “contributing societal conditions.” That was different from BMW Manufacturing’s policy of “automatic exclusions with no further consideration,” it said.
The government further argued that it would “dangerous” for the court to require that it turn over the policy since that would open up EEOC internal personnel practices for discovery every time it files litigation.
“The defendant-employer sued in a sexual harassment case, for example, might seek discovery related to EEOC’s sexual harassment policy to argue that defendant-employer’s policy is ‘similar or the same’ as EEOC’s policy and therefore defendant-employer could not have violated the law,” it warned.
“The ‘most open and transparent administration’ is trying to hide its own hiring policies. That’s just not the way it should be,” said Aloysius Hogan, senior fellow at the Competitive Enterprise Institute, a free-market think tank.
