The ruling was issued on 12/8/14 by Judge Henry M. Herlong, Jr. of the District Court of South Carolina, Spartanburg Division. The ruling overturns a prior magistrate’s ruling that BMW failed to show that the request would help the company prove that its policy is job related and consistent with business necessity. However, Judge Herlong issued the following caution:
The court does not make a finding regarding admissibility, and the EEOC's policies ultimately may not be relevant. However, this production should not be burdensome to the EEOC, and the court can perceive no harm to the EEOC in producing its internal policies.
The full text of Judge Herlong’s ruling may be viewed here.
Much is being made of this ruling on various websites. I’m probably in the minority but I don’t view this as that big a deal. After all, discovery of EEOC background checks was permitted in both EEOC v. Kaplan and EEOC v. Freeman, both of which were losers for the EEOC because expert opinions regarding the presence of adverse impact were discredited in both cases.
Here’s what I think. This issue becomes interesting if, and only if, the EEOC successfully proves adverse impact, thus forcing an employer defense. Thus far, that has not happened and I think the EEOC will continue to press on until it forces some defenses.
Also, recognize that settlements recently have been reached by the EEOC against Pepsi Beverages, which agreed to pay $1.3 million, and by New York State against Bed, Bath & Beyond, which agreed to rescind its background check policy, establish a $40,000 restitution fund for individuals denied employment, and give $15,000 to each of three organizations.
One final point --- we have discussed these issues at length in numerous past Alerts. Readers interested in reading them should select the blog option on the DCI Website and type in “background checks” in the search option. The chronology of posts is interesting.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology
