EEOC v Freeman concerned an events company that used [criminal and credit] background checks in employment decisions between July 2006 and August 2011. The company had experienced problems with employee drug use, embezzlement, and workplace violence, and saw background checks as a legitimate way to screen applicants.
US District Judge Roger Titus scored the agency for…putting 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.”
And if that wasn’t a clear enough message, he 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.”
There’s more to this:
[T]he [EEOC] didn’t show that Freeman Co discriminated against black applicants by using criminal-background checks or credit checks in its hiring process.
Well, duh. The judge went on:
The story of the present action has been that of a theory in search of facts to support it. But there are simply no facts here to support [the EEOC's claim that black applicants were improperly discriminated against].
Freeman has 4,100 full-time and 25,000 to 30,000 part-time employees; that part-time to full-time ratio is a potful of turnover—which puts a premium on those background checks.