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Court Dismisses EEOC’s Background Check Lawsuit Based On Its Reliance On “Laughable” And “Unreliable” Expert Report Filled Of “Errors and Analytical Fallacies”

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In a scathing opinion issued today in EEOC v. Freeman, No. 09-CV-2573 (D. Md. Aug. 9, 2013), Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a nationwide pattern or practice lawsuit brought by the EEOC (previously discussed

here and here) that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. This decision marks yet another blow to the EEOC’s use of systemic lawsuits to challenge employers’ reliance on background checks in making hiring decisions.

The Court’s Opinion

Prior to analyzing the EEOC’s disparate impact claim, Judge Titus discussed the utility of credit and criminal background checks, as well as the EEOC’s recent targeting of employers for such background checks, including the recent cases it filed against BMW and Dollar General Corp. In discussing these lawsuits, Judge Titus noted that:

“Because of the higher rate of incarceration of African-Americans than Caucasians, indiscriminate use of criminal history information might have the predictable result of excluding African-Americans at a higher rate than Caucasian. 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.”

Id. at 2. Turning to the specific case before him, Judge Titus focused on whether the EEOC provided the requisite evidentiary foundation that Freeman’s policies had a disparate impact based on reliable and accurate statistical analysis. Judge Titus held that the EEOC had not made such a showing and spent a majority of his 32-page ruling bashing the “expert” reports prepared by Dr. Kevin R. Murphy, the EEOC’s statistical expert. This is not the first time a U.S. District Court Judge has criticized the EEOC’s reliance on Dr. Murphy’s statistical analysis.  As previously reported here, Judge Patricia A. Gaughan of the U.S. District Court for the Northern District of Ohio granted summary judgment to the defense in EEOC v. Kaplan Higher Education Corp. (discussed here) – in part based on the “great concern” she had regarding several aspects of Dr. Murphy’s disparate impact analysis in that case.

Read More 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/

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