Court Affirms Judgment against EEOC in Freeman Case

ESR News Blogs about EEOC

Written By ESR News Blog Editor Thomas Ahearn

The United States Court of Appeals for the Fourth Circuit has affirmed a summary judgment in a lawsuit filed by the Equal Employment Opportunity Commission (EEOC) alleging that corporate events service provider Freeman conducted criminal background checks that had an unlawful disparate impact on black and male job applicants in violation of Title VII. The appeal decision in EEOC vs. Freeman, No.13-2365 (February 20, 2015) – which unanimously affirms the rejection of “utterly unreliable analysis” from an EEOC expert – is available at http://www.esrcheck.com/file/EEOC-v-Freeman-Decision.pdf.

In the ruling, the Fourth Circuit Court of Appeals unanimously affirmed the decision by Judge Roger Titus of the U.S. District Court for the District of Maryland to exclude a report from a designated EEOC expert named Kevin Murphy due to the “alarming number of errors and analytical fallacies” and “mind-boggling number of errors and unexplained discrepancies” that made it “impossible to rely on any of his conclusions.”  Federal Rule of Evidence 702 governs the admissibility of expert evidence and expert testimony is admissible if it “rests on a reliable foundation and is relevant,” according to the ruling.

As reported on by ESR News in August 2013, Judge Titus issued a Memorandum Opinion that dismissed a lawsuit brought by the EEOC claiming Freeman “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.” The Judge labeled the EEOC expert reports prepared to support of its claims of disparate impact as “based on unreliable data,” “rife with analytical error,” “distorted,” “cherry-picked,” and “an egregious example of scientific dishonesty.” The blog is at http://www.esrcheck.com/wordpress/2013/08/12/eeoc-background-check-lawsuit-dismissed-by-court-based-on-unreliable-expert-reports/.

“It could be a costly mistake for employers or screening firms to interpret this decision to mean they can become complacent about EEOC compliance in hiring,” said Attorney Lester Rosen, Founder and CEO of Employment Screening Resources® (ESR) and author of ‘The Safe Hiring Manual.’ “Discrimination cases based on disparate impact necessarily involve statistical arguments, which means there will be a ‘battle of the experts. Just because one side loses the expert battle in one or two cases does not mean that employers can assume these laws are no longer important. This is an emerging area of litigation and employers should not assume the same approaches rejected by courts now will be used in the future.”

On April 25, 2012, the EEOC approved updated Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 . The complete text of the EEOC Guidance available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. Rosen has also written a complimentary whitepaper ‘Practical Steps Employers Can Take to Comply with EEOC Criminal Record Guidance’ available by emailing EEOCwhitepaper@esrcheck.com. For more information about Employment Screening Resources (ESR), call toll free 888.999.4474 or visit http://www.esrcheck.com.

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