A Chicago federal magistrate judge has largely rejected Dollar General's effort to squeeze more information from federal regulators in their efforts to defend against a discrimination suit against the discount retail chain, which alleges the company's job applicant screenings are geared to keep out blacks.
In 2013, the U.S. Equal Employment Opportunity Commission filed suit against Dollar General, based in Goodlettsville, Tenn., alleging the company used criminal record checks and other hiring practices, such as credit checks and drug tests, to exclude blacks from employment or fire them if they were already employed.
Dollar General is trying to force the EEOC to furnish information Dollar General says is necessary for the company to refute the EEOC's allegations.
Specifically, Dollar General wants to know the specific job positions the EEOC believes is affected by the allegedly discriminatory background check policy and what parts of the policy are allegedly to blame. Further, Dollar General wants to know what policies the EEOC believes should instead be in place and how those policies would be consistent with the company's need to protect itself and the public.
“While Dollar General has utilized every discovery mechanism available to ascertain what the EEOC believes to be the specific crimes and 'position[s] in question' in this litigation, the EEOC has refused to provide this information,” Dollar General's attorneys claimed.
Magistrate Judge Sheila Finnegan ruled the EEOC has no obligation to show how discrimination applies on a position-by-position basis, because the EEOC claims Dollar General's policy affected all applicants and employees across the board.
“If the EEOC is wrong, then it will suffer the consequences in the litigation for analyzing the policy as a whole. Once again, if Dollar General believes that only certain portions of its policy are relevant in determining the existence of disparate impact (on blacks), it may address the issue through its own expert,” Finnegan said.
As far as an alternative background vetting policy, the EEOC pointed out it made several suggestions, including a limiting of the time frame for criminal convictions and restricting the types of convictions to be considered. Dollar General countered these suggestions fail to provide meaningful guidance, with the EEOC rebutting it is not duty-bound to “craft ready-made policies” for Dollar General.
Finnegan agreed with the EEOC, saying the correct policies should be hashed out between rival experts for the parties, as should the question of how the policies tie in with Dollar General's business requirements.
Dollar General did make a sale with Finnegan, when it came to the company's demand the EEOC specify what documents it will use in its case, instead of referring to certain materials it is seeking merely as “other documents.”
“Dollar General has a right to know the universe of documents the EEOC plans to use,” Finnegan observed.
To this end, Finnegan ordered the EEOC to identify everything in its arsenal.
Earlier in proceedings, Dollar General pushed for information from the EEOC.
In 2015, Dollar General wanted the EEOC to hand over reports, databases and other documents, contending the government agency needed to supply these materials to “provide adequate notice of the allegations,” so Dollar General could properly respond.
However, District Judge Andrea Wood blocked the company's request, saying the EEOC had explained the scope of its case.
A status hearing is scheduled for Jan. 25.
Dollar General is defended by McGuireWoods LLP, which has offices in Dallas and Chicago, as well as by Epstein, Becker & Green, of Chicago.