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Former EEOC GC on Background Checks when making Hiring Decisions

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On August 9, U.S. District Judge Roger Titus in Maryland dismissed an Equal Employment Opportunity Commission lawsuit against Freeman Cos., which the agency claimed was discriminating against minority and male job applicants.

The EEOC said in a September 2009 compliant that the event-services company used discriminatory hiring criteria against minorities by looking at the credit history of some of its job applicants and by considering candidates' criminal history. The agency alleged that Freeman's hiring policies led to disparate impact on proposed class members.

Titus wrote in his opinion that some specific uses of criminal and credit background checks may have been discriminatory. But the EEOC gave unreliable expert testimony to demonstrate disparate impact stemming from the Freeman's practices. this week discussed the case with Akin Gump Strauss Hauer & Feld partner Donald Livingston, who was Freeman's lead attorney. The Washington, D.C.-based lawyer is a former EEOC general counsel. The following conversation has been edited for length and How did you get involved with the EEOC v. Freeman case?

Donald Livingston:
Prior to EEOC v. Freeman, I'd done a lot of work and thinking on the Title VII ramifications of the use of criminal history information in the hiring process. I'd represented a few clients in some EEOC matters that concerned [the use of criminal history information]. I'd given some testimony at an EEOC meeting as a management representative. I helped work with the U.S. Chamber of Commerce to submit their comments on the EEOC's potential policy guidance, and I served as a liaison with the EEOC on behalf of the American Bar Association.

CC: Is this case part of a major push by the EEOC to challenge employer usage of background checks?

Yes. Some number of years ago, the EEOC launched two initiatives almost simultaneously. One was its systemic initiative that was intended to place more EEOC resources and emphasis on big-picture issues and pattern or practice claims of discrimination. And the second was an EEOC initiative called E-RACE. E-RACE was a race and color discrimination initiative, which, among other things, was intended to attack hiring practices that the EEOC believed had an unfair disparate impact on the basis of race. One of the targets of the disparate impact initiative portion of E-RACE was the use of criminal histories by employers during the hiring process. Freeman was the second lawsuit that the EEOC filed after E-RACE that I know of.

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Growth in women's share of science, technology, engineering and mathematics (STEM) occupations declined to 27% in 2011from a high of 34% in 1990. While women make up nearly half of the workforce, they were 26% of the STEM workforce in 2011.

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