EEOC Forced to Divulge Hiring Practices

May 6th, 2012 by JBWK

The EEOC, which has taken an aggressive stance on employers’ use of background checks, is now being forced to divulge how it uses background checks on its own applicants and employees. But it’s not Congress requesting the information; it’s a defendant in a discrimination lawsuit.

The quick backstory: The EEOC sued Kaplan Higher Education alleging its use of    credit checks in its hiring process disparately impacted African-American applicants. Kaplan claimed the positions required background checks out of business necessity. The EEOC disagreed. Kaplan, however, took an interesting route. Instead of simply arguing over the legal issue, Kaplan asked the judge to order the EEOC to disclose how it determines which applicants it will require to undergo background and credit checks. The judge agreed, ordering the EEOC to disclose its internal determination process.

It is notable for a couple of reasons. First, it underscores the increased scrutiny federal judges are applying to the federal agency. Second, it opens a new avenue of defense in discrimination claims by allowing the defendant to argue, in essence, “you do it, too, so it must be okay.”



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