A federal judge had harsh words for the EEOC while dismissing the agency’s suit against an employer for its policy of conducting background checks. Last year, the EEOC issued guidance to employers about the use of background checks. Multiple suits followed, including two highly publicized cases filed in June, alleging that employers violated Title VII. But in ruling on a third suit making similar allegations filed by the agency, U.S. District Court Judge Robert W. Titus cast serious doubt about the agency’s theory of liability and expressed concern about employers faced with the choice of hiring a potential criminal or conducting a check and facing a lawsuit from the EEOC. “By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.” Judge Titus continued: “Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.”
