EEOC Background Check Lawsuit Dismissed by Court Based On Unreliable Expert Reports

In a Memorandum Opinion issued in the case of Equal Employment Opportunity Commission (EEOC) v. Freeman, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC alleging that corporate events service provider Freeman, Inc. “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants,” according to a blog on WorkplaceClassAction.com. The blog is available at http://www.workplaceclassaction.com/2013/08/court-dismisses-eeocs-background-check-lawsuit-based-on-its-reliance-on-laughable-and-unreliable-expert-report-filled-of-errors-and-analytical-fal/.

In the 32-page Memorandum Opinion, Judge Titus held that the EEOC had not provided the requisite evidentiary foundation that Freeman’s policies had a disparate impact based on reliable and accurate statistical analysis. The Judge labeled the “expert” reports prepared by the EEOC to support of its claims of disparate impact as: “laughable”; “based on unreliable data”; “rife with analytical error”; “distorted”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.” The complete Memorandum Opinion in the case of EEOC v. Freeman, No. 09-CV-2573 (D. Md. Aug. 9, 2013) is available at http://www.workplaceclassaction.com/files/2013/08/2013-08-09-Memorandum-Opinion-c.pdf.

When discussing how higher rates of incarceration of African-Americans than Caucasians might exclude African-Americans when hiring, Judge Titus noted: “Indeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII.  However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”

The WorkplaceClassAction.com blog reports that the “decision marks yet another blow to the EEOC’s use of systemic lawsuits to challenge employers’ reliance on background checks in making hiring decisions” and that “it is possible (if not likely) the EEOC will appeal Judge Titus’ decision.” On April 25, 2012, the EEOC – the agency enforcing federal laws prohibiting employment discrimination – voted to update the Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. The updated Guidance from the EEOC on criminal records is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.

“Although the case was a win for this particular employer, background screening firms and employers in general need to realize that this case is just one at-bat in what appears to be a very long game,” warns Attorney Lester Rosen, Founder and CEO of Employment Screening Resources® (ESR). “As these types of cases proceed through the court systems, court decisions educate everyone as to approaches to take in future litigation. There is nothing about this decision that suggests in any way that employers should not take the 2012 EEOC Enforcement Guidance very seriously and to take steps to insure that the use of criminal records are fair and relevant.”

Rosen, the author of ‘The Safe Hiring Manual,’ has also written a whitepaper titled ‘Practical Steps Employers Can Take to Comply with New EEOC Criminal Record Guidance’ to help employers understand criminal background checks. The complimentary whitepaper is available to employers by emailing EEOCwhitepaper@esrcheck.com. Employment Screening Resources® (ESR) – ‘The Background Check Authority®’ – is a nationwide screening provider accredited by the National Association of Professional Background Screeners (NAPBS®). For more information, visit http://www.esrcheck.com or call toll free 888.999.4474.

Sources:

http://www.workplaceclassaction.com/2013/08/court-dismisses-eeocs-background-check-lawsuit-based-on-its-reliance-on-laughable-and-unreliable-expert-report-filled-of-errors-and-analytical-fal/

http://www.workplaceclassaction.com/files/2013/08/2013-08-09-Memorandum-Opinion-c.pdf

About Employment Screening Resources® (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources® (ESR) – ‘The Background Check Authority®’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more about ESR, visit http://www.esrcheck.com or call toll free 888.999.4474.

About ESR News: 

The Employment Screening Resources® (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at tahearn@esrcheck.com. To subscribe to the ESR News Blog Feed, visit http://www.esrcheck.com/wordpress/feed/. To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit http://www.esrcheck.com/Newsletter/.

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