Employment Law Daily Dollar General can’t compel EEOC info for its ‘business necessity’ defense
Friday, December 15, 2017

Dollar General can’t compel EEOC info for its ‘business necessity’ defense

By Lorene D. Park, J.D.

A federal magistrate judge in Illinois has largely denied Dollar General’s motion to compel the EEOC to produce additional information relevant to the company’s business necessity defense to a suit challenging its criminal background check policy as having an adverse impact on African-Americans. The agency would not be required to produce a position-by-position analysis of whether the policy was justified as a business necessity, though the company’s expert was free to perform such an analysis. The court also refused to order the EEOC, at this juncture, to specify less discriminatory alternative policies; that inquiry was in the province of the experts and the parties’ agreed expert discovery schedule addressed that issue (EEOC v. Dolgencorp, LLC dba Dollar General, December 11, 2017, Finnegan, S.).

This suit followed the filing of an EEOC charge claiming an employee was fired for a felony conviction, which she believed was discrimination based on her race. The EEOC received a similar charge in 2009 and, after an investigation, it found reasonable cause to believe Dollar General’s criminal background check policy discriminated against African-American individuals. It subsequently filed suit under Title VII, alleging disparate impact.

Contentious litigation. The EEOC filed suit under Title VII, claiming the criminal background check policy caused a disparate impact on African-American applicants. The discovery process has been contentious, with the court intervening to resolve disputes over the company’s production of electronically stored information, the depositions of its store managers, the production of Dollar General’s most recent scoring protocol for screening applicants (the “Desired Behavioral Assessment”), the length of interrogatories, and requests for the EEOC’s pre-suit statistical analysis (which the court denied). The EEOC was also granted summary judgment on two of Dollar General’s affirmative defenses—one challenging conciliation and the other arguing the EEOC’s claims went beyond the scope of the charges and investigation.

Dollar General has now filed motions to compel discovery and to stay the expert report deadline, claiming it needs additional information to establish remaining affirmative defenses. It asks the EEOC to: (1) identify the specific positions where black applicants experienced disparate impact due to the background check policy, and the portions of the policy responsible; (2) identify the less discriminatory policies and practices it believes should be implemented; and (3) explain how those policies and practices are consistent with Dollar General’s business needs.

Burden of proof. To succeed on its disparate impact claim, the EEOC must offer statistical evidence showing the background check policy excluded applicants based on race. If it does so, Dollar General must show the policy is “job related for the position in question and consistent with business necessity.” Upon such a showing, the EEOC must then demonstrate that an equally valid, less discriminatory practice was available that Dollar General refused to use.

Evidence relevant to business necessity defense. Here, the question was the timing and extent of information the agency must provide to assist Dollar General in proving its policy was job related for each position and consistent with business necessity. The company argued the agency must show disparate impact on a position-by-position basis, but the EEOC claimed a position-by-position analysis is not required because the policy applied to all applicants for all positions. Consistent with that view, the EEOC’s expert took a global approach to analyze the policy, finding it had a disparate impact on black applicants overall. But for two positions, sales associate and sales manager, the EEOC expert also performed a narrower analysis to determine if the policy had a disparate impact when applied to applicants for those positions.

Refusing to compel the EEOC to undertake a position-by-position analysis, the court explained that regardless of whether a position-by-position analysis was required, Dollar General was free to proceed with its own analysis on that basis and its own expert could use any methodology deemed appropriate and use the same data as used by the EEOC’s expert to show the policy does not have a disparate impact. The company’s expert could also challenge the EEOC’s expert analysis as flawed or inadequate. And while Dollar General argued that it was “fundamentally unfair” to require it to provide a business necessity defense to “hundreds of positions,” it appeared to the court that the background check policy was applied to all positions throughout the company, and it could not relieve the company of its obligation of demonstrating the defense for each position to which the policy applied.

The court also denied Dollar General’s request for unspecified “criminal history criteria” that the EEOC believed caused a disparate impact. At a hearing, the EEOC’s counsel indicated its expert looked at the policy as a whole, rather than parsing out specific elements, and argued this was appropriate given no evidence that the company applied different criteria to different positions. In the court’s view, if the agency was wrong, it would suffer the consequences in the course of litigation. Moreover, the company’s expert was free to address whatever portions of the policy are deemed relevant to the issue.

Less discriminatory alternatives. Several of Dollar General’s interrogatories asked the EEOC to identify less discriminatory alternative employment practices it should use in lieu of the criminal background check policy. The EEOC did not dispute it has the burden on this issue but noted it already presented several less discriminatory options, such as “limiting the time frame for convictions based on credible research” and “conducting an individualized assessment of each applicant.” While Dollar General protested that these are merely generic suggestions that provide no meaningful guidance, the EEOC further averred that it has no obligation to “craft ready-made policies” and the matter is best addressed through expert discovery.

The court agreed with the EEOC that identifying specific alternatives falls within the province of experts. It further noted that the discovery schedule contemplates that once the company’s expert explains why the policy was a business necessity, the EEOC’s expert will need to identify less discriminatory alternatives available to Dollar General. With that in mind, the court held that the EEOC has provided sufficient information at this point and denied the company’s request. For the same reason, it denied the request for information on how each alternative meets Dollar General’s business needs.

EEOC needs to specify docs. As to Dollar General’s request for additional documents, the court granted in part its motion to compel, finding inadequate the EEOC’s vague reference to “other” published EEOC documents on which it intends to rely. The generic reference was insufficient and the agency was ordered to identify with specificity its publications on which it may rely.

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