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EEOC Hiring Practices Subject to Discovery in Litigation

Saturday, August 18th, 2012

In EEOC v. Freeman, Case No. 09-2573, the federal district court of Maryland denied EEOC’s motion for a protective order on August 14, 2012 to hold that a defendant-employer being sued by the EEOC may depose EEOC officials regarding the agency’s use of criminal background checks and credit histories in its hiring practices. The court stated that, because the EEOC was suing the employer under Title VII of the Civil Rights Act of 1964 for alleged discriminatory use of criminal background checks and credit histories in its hiring practices, the employer was entitled to find out whether the EEOC utilized similar hiring criteria in filling jobs. In its defense, employer argued that use of criminal background checks and credit histories in its hiring practices was consistent with business necessity, and the United States Magistrate Judge agreed with the employer that it was entitled to learn whether the EEOC utilized similar hiring practices because, if so, “this fact may show the appropriateness of those practices.” The court found that, based on discovery obtained thus far, the employer and the EEOC appear to utilize similar considerations; to wit, with regard to job applicants with criminal backgrounds, both employer and the EEOC appear to consider the nature of the offense, its seriousness, and the requirements of the job to be filled.