Jonathan Bilyk Nov. 18, 2015, 3:23pm

A federal judge has dealt setbacks to Dollar General in its years-long court fight with federal equal opportunity regulators over claims the company’s employment screening practices resulted in keeping African Americans from landing jobs at the retailer’s stores.

On Nov. 17, U.S. District Judge Andrea Wood denied Dollar General’s objection to an earlier ruling by a magistrate judge, which had determined the retailer could not obtain through discovery statistical analyses and other documents detailing the federal Equal Employment Opportunity Commission’s bases for suing Dollar General over its hiring practices.

The judge also overruled Dollar General’s objections to the EEOC’s requests for documents pertaining to the retailer’s use of a so-called “Desired Behavior Assessment,” as well as credit checks, reference tests and drug tests to screen potential employees.

Wood’s rulings come as the latest step in the litigation first brought in 2013 by the EEOC against Goodlettsville, Tenn.-based Dollar General. In its complaint, the EEOC alleged Dollar General’s hiring practices, and particularly its use of criminal background checks to screen job applicants, has caused a disparate impact on African-American job applicants.

Discovery supervision in the case had been referred to a magistrate judge earlier this year.

In April, the magistrate judge had granted a request by the EEOC to compel the retailer to turn over documents regarding pre-employment screening, and particularly documents related to its use of the behavior assessment tool and other pre-employment screening methods used since 2004. Among other documents, the EEOC’s motion included a request for those that could be used to “identify ‘when and why’ Dollar General began using the (Desired Behavior Assessment) and to identify ‘any studies done by or records kept by defendant which track the incidents of retail theft and/or amount of shrinkage at Dollar General stores before and after defendant began using such tests.”

Dollar General then objected to the judge’s ruling, saying it believed those documents sought by the EEOC were “irrelevant” to the litigation.

And in May, the magistrate judge had again sided with the EEOC, agreeing the federal agency did not need to turn over various pre-lawsuit “statistical analyses” the agency may have relied upon in determining whether to sue Dollar General over the disparate income claims. The judge in that case had decided the reports and analyses sought by Dollar General were protected by “the deliberative process privilege,” which “covers documents reflecting advisory opinions, recommendations and deliberations comprising part of the process by which governmental decisions and policies are formulated.”

Dollar General also objected to that decision by the magistrate judge, saying the documents “contain purely factual information that can be segregated from any deliberative process.”

In both disputes, Wood said the magistrate judge’s decisions should stand.

Regarding the information sought by the EEOC, Wood said the magistrate judge was correct in finding the retailer will need to supply the requested documents, as they are needed by the EEOC to build a case to overcome Dollar General’s defense claiming the criminal background check is “a business necessity.”

“If Dollar General has other hiring tests and checks in place that serve purposes similar to those of the criminal background check, then such evidence is relevant to whether the criminal background check is, in fact, a business necessity,” Wood wrote.

And on the question of whether the EEOC needs to produce the documents requested by Dollar General, Wood said the magistrate judge was also correct in finding those agency reports to be privileged.

“The statistical materials in this case are integral to the deliberative purposed of the documents: to determine whether the criminal background check at issue in this litigation has a disparate impact on African-American job seekers and whether to pursue claims against Dollar General,” the judge wrote.

Dollar General is represented in the action by attorneys with the firms of McGuireWoods LLP, with offices in Dallas and Chicago; Morgan Lewis & Bockius, with offices in Chicago and Dallas; and Perkins Coie, of Dallas.

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Organizations in this Story

Morgan, Lewis and Bockius LLP
77 West Wacker Drive
Chicago, IL 60601

Perkins Coie
131 S Dearborn St
Chicago, IL 60603

McGuireWoods LLP
77 W Wacker Dr
Chicago, IL 60601

U.S. Equal Employment Opportunity Commission
131 M St NW
Washington, DC 20001

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