By denying BMW access to the EEOC’s hiring policies regarding the use of criminal background checks, a U.S. magistrate in South Carolina took the opposite view of federal courts in Ohio and Maryland.  Federal courts in Ohio and Maryland held that the EEOC’s use of criminal background checks was relevant in the Commission’s litigation against Kaplan and Freeman, respectively, but the federal court in South Carolina went the other way in BMW.  Last week, a magistrate issued an order denying BMW’s motion to compel the EEOC to produce documents related to the EEOC’s own criminal conviction policy in support of BMW’s defense that BMW’s criminal conviction policy is justified by job-relatedness and business necessity.  The magistrate did not find the EEOC’s policies relevant to BMW’s defense.

As in BMW, Dollar General subpoenaed the EEOC’s criminal background check policy and the EEOC failed to produce that information.  Again as in BMW, Dollar General has filed and the EEOC has opposed a motion to compel production.  The magistrate in this matter will likely rule on cross-motions to compel production in November.