The EEOC had a roller coaster week with respect to its aggressive challenges to employers’ background check practices.

On September 3, a federal district court in Maryland slapped the EEOC with an attorney’s fees judgment just shy of $1 million because the EEOC continued to pursue its attack against employer Freeman’s background check practice even after the Court struck the EEOC’s statistical expert for “inexplicably shoddy work.” Without reliable statistical evidence of disparate impact, the EEOC could not make out a prima facie case of discrimination and should have known that its case going forward was groundless. Quoting Kenny Rogers’ “The Gambler” and comparing the case to a poker game, the Court called Freeman’s case as a “royal flush” and chastised the EEOC for “playing a hand it could not win.”

The EEOC fared better in challenging BMW’s background check practice. On September 8, the EEOC and BMW requested the federal district court in South Carolina to approve a consent decree that, among other things, established new criminal background check guidelines for BMW’s South Carolina facility. The guidelines include detailed procedures informing applicants in writing of the criminal history under consideration and giving applicants 21 days after notice to initiate communication about their criminal history and job qualifications. BMW also will pay $1.6 million in monetary relief to fifty-six claimants denied employment with BMW.

Background check policies remain an EEOC target; I do not expect the adverse attorney’s fee award to dampen the EEOC’s enthusiasm for these challenges.

EEOC v. Freeman, No. RWT 09cv2573, 2015 BL 288334 (D. Md. Sept. 3, 2015).
EEOC v. BMW Manuf. Co, LLC, No. 7:13-CV-01583-HMH (D.S.C. Sept. 8, 2015).