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The Sixth Circuit has issued an opinion sharply critical of the EEOC's pursuit of a claim that the use of background checks is unlawful.  As previously noted, in EEOC v. Kaplan, the EEOC attempted to present an expert opinion to support its allegation that Kaplan's use of background checks to screen job applicants had a disparate impact on African-American applicants.  The federal appeals court yesterday affirmed the trial court's decision to exclude the opinion of the EEOC's expert.  The Sixth Circuit's decision focused on the Daubert test - which outlines parameters that all experts must satisfy.  The Court found the EEOC's expert opinion woefully lacking.

 

The Sixth Circuit also hinted at its view of the use of background checks more generally.  It observed that the EEOC uses the same background screening process as does Kaplan.  It also noted that Kaplan's use of background checks was supported by its legitimate business need based on previous theft of student financial information.

 

The EEOC undoubtedly is carefully considering its stance on background checks.  Nonetheless, this opinion is far from the end of background check scrutiny.  The basis of the decision is relatively narrow.  This leaves open the possibility that the EEOC could ultimately prevail in a similar case with better evidence or in a different jurisdiction.  Employers should continue to take care and seek counsel when deciding whether and how to use background checks in employment decisions. 

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