As we reported in a recent blog post, attorney generals from several states asked the EEOC to reconsider background check lawsuits they were filing against Dollar General and BMW. But that was just one such example of similar lawsuits being filed by the EEOC.
In an opinion recently issued in the case of EEOC v. Freeman, Inc., 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 that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied on credit and criminal background checks that caused a disparate impact against African-American, Hispanic and male job applicants.
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. He 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.
He labeled the expert reports as: “laughable”; “based on unreliable data”; “rife with analytical error”; containing “a plethora of errors and analytical fallacies” and a “mind-boggling number of errors”; “completely unreliable”; “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded”; “distorted”; “both over- and under-inclusive”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.”
Even putting aside all of these issues, Judge Titus said the EEOC failed to identify the specific policy or policies causing the alleged disparate impact and made “no effort to break down what is clearly a multi-faceted, multi-step policy.”
The defeat of the EEOC’s case is significant in this situation, and we’ll be following the outcome of similar cases as well.
