Federal Court Limits Employer's Right To Discover Information About The EEOC's Own Hiring Policies And Expands The EEOC's Rights On Discoverability

In recent years, the Equal Employment Opportunity Commission has aggressively sought to enforce its April 2012 enforcement guidance concerning how, in the EEOC's view, Title VII of the Civil Rights Act of 1964 restricts an employer's discretion to consider criminal records for hiring decisions.1 Despite court rulings favorable to employers in three high-profile EEOC lawsuits against Kaplan Higher Education Corporation, Freeman and BMW,2 a recent decision in Illinois in the EEOC's suit against Dollar General highlights disagreement among some courts regarding whether an employer can force the EEOC to explain how the EEOC uses criminal records for its own hiring decisions. That same court is also allowing the EEOC access to personal information for the aggrieved employees and unredacted background check program documents. It thus appears that despite three consecutive setbacks, the EEOC is refusing to let criminal record check claims fade into the background.

The Dollar General Lawsuit

On June 11, 2013, the EEOC filed suit against Dollar General, alleging that the company's use of criminal background checks purportedly disparately impacts African-American applicants in violation of Title VII.3 The individuals who filed the charges that prompted the EEOC's lawsuit are African-Americans, one of whom alleged that Dollar General denied her employment because of a six-year-old conviction for possession of a controlled substance, and the other alleged she was terminated because of a felony conviction that actually belonged to someone else. The lawsuit alleged that there was a "gross disparity in the rates at which Black and non-Black conditional employees were discharged," in violation of Title VII.

Personal Information

On December 18, 2013, the EEOC propounded discovery requests seeking electronically-stored data on Dollar General's conditional hires. After Dollar General refused to provide personal information about the potential class (including names and social security numbers), the EEOC moved the district court to compel the company to provide the information so the EEOC could identify employees allegedly impacted by the background check policy. The EEOC maintained that it needed the information to contact potential class members, to enable its experts to perform a full statistical analysis, and to combine multiple databases into a single database.

Dollar General argued there was no reason for the EEOC to have personally identifiable...