In a decision by a Maryland federal judge, the Equal Opportunity Employment Commission (EEOC) was ordered to pay attorney's fees in EEOC v. Freeman. The EEOC sued the corporate events company charging that their background screening policies were discriminatory and had a disparate impact on minorities.
The court stated that the EEOC had "inexcusably slipshod" evidence and that the EEOC was aware they did not have enough information to bring the charges to fruition. "Instead of folding, the EEOC went all in and defended its expert through extensive briefing in this Court and on appeal. Like the unwise gambler, it did so in peril," said the judge. Because the EEOC could not win the case, they were held liable for nearly one million dollars in attorney fees.
The EEOC then settled another criminal case later that week against BMW. BMW's criminal background screening policies barred employment for those with convictions as a blanket rule, regardless of the timing or severity of the conviction.
The EEOC guidance makes clear that employers should review criminal history to show that the decision not to hire is job-related and consistent with a business necessity. Blanket policies such as BMW's are shown to affect the minority community disparately.
Despite having such different outcomes, the EEOC is not slowing down. If your company uses background checks to aid in making employment decision, be sure your adjudication process is sound and takes into consideration the different positions available within your organization so you too, won't be be statistic for the EEOC.