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For a precision search, click Advanced Search Options to expand additional search fields. Enter a Middle Name. On April 27, , in an initial ruling, the district court held that based on this "pattern or practice" lawsuit, Title VII "precludes the EEOC from seeking relief for individuals who were not subjected to an unlawful employment practice during the days before the filing of the triggering charge" i. January 17, , thus dismissing all claims asserted in the complaint to the extent they related to hiring decisions made before March 23, As significantly, in a subsequent motion by the employer to further limit the scope of the applicable class, the employer focused on the EEOC's delay in notifying the employer that it had expanded the charge to address criminal history until eight months after the charge was filed.
As a result, the court further narrowed the scope of the applicable class and held that the EEOC could only seek relief of those allegedly excluded from hire based on criminal history if they had been excluded during the time period days prior to the date that the employer had been notified that the charge also would challenge any exclusions based on an applicant's criminal history record. While the applicable limitations period was an issue presented for appeal to the Fourth Circuit in the Freeman case, the appellate court declined to consider the issue, basing its affirmance of the summary judgment ruling solely on the exclusion of the expert's reports.
In criminal and credit history cases, employers also have attempted to focus on the EEOC's own hiring practices to establish an estoppel affirmative defense. In Freeman , the employer attempted to depose EEOC officials to specifically inquire about such practices. In rejecting the EEOC's motion for a protective order, the district court ruled that "if [the EEOC] uses hiring practices similar to those used by [Freeman], this fact may show the appropriateness of those practices, particularly because [the EEOC] is the agency fighting unfair hiring practices.
Similar to other EEOC challenges of employers relying on criminal history in the hiring process, the basis for the EEOC's claim in Freeman does not involve alleged intentional discrimination.
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Rather, the focus has been disparate impact claims, which attack rules that are "fair in form, but discriminatory in operation" based on an applicant's protected status. A critical factor in these cases is the relevant pool of statistics that needs to be considered in proving disparate impact, since a certain level of specificity is required in proving a disparate impact claim.
While the EEOC challenged the use of criminal and credit history in Freeman , the EEOC's experts merely attempted to compare the percentage of African American applicants not hired because of the criminal or credit background check with the percentage of non-African American applicants not hired because of the check.
As discussed above, the EEOC's lawsuit in Freeman alleged that the employer engaged in a "pattern or practice" of discrimination against African American applicants by using poor credit history as a hiring criterion "credit class" , and against African American, Hispanic, and male job applicants by using criminal history as a hiring criterion "criminal class".
According to the EEOC, these hiring criteria had a significant disparate impact on the identified classes and were not job-related or consistent with business necessity. After dismissals based on procedural issues, the "credit class" consisted of 51 African Americans allegedly unlawfully excluded from employment, while the "criminal class" comprised African American and males allegedly unlawfully excluded from employment.
Murphy and Beth M. Huebner, based on inaccuracies in the underlying data in support of the EEOC's disparate impact claim. These experts analyzed data produced by the company in an attempt to show that African American applicants failed the company's credit background checks at a significantly higher rate than did other races, and that male and African American applicants failed the company's criminal background checks at a significantly higher rate than did females and non-African Americans.
Just a few days later, the company moved for summary judgment, contending that because the EEOC failed to present reliable statistical evidence, the EEOC was unable to show disparate impact. Judge Titus of the District Court of Maryland ultimately agreed with the company and granted its motion for summary judgment, explaining, "[t]he story of the present action has been that of a theory in search of facts to support it. The court felt it had "no choice" but to disregard the experts' disparate impact analysis, stating that "there appear to be such a plethora of errors and analytical fallacies underlying Murphy's conclusions to render them completely unreliable, and insufficient to support a finding of disparate impact.
He was bad, so they put an ice pick in his brain...
The court also opined that the national statistics cited in the experts' reports were not enough to show disparate impact. The experts relied on general population statistics to create an inference of disparate impact, even though the general population pool was not representative of the relevant applicant pool. The court went on to state that even if the expert reports were admissible, the EEOC nevertheless failed to identify any policies causing the alleged disparate impact.
The company's background investigation policies consisted of multiple elements that involved different types of checks depending on the particular job an applicant sought, consideration of both subjective and objective criteria, and examination of several factors. The court explained that the EEOC made no effort to break down the company's multi-faceted policy and identify which parts were responsible for creating a disparate impact on certain classes.
The court concluded by empathizing with employers and recognizing the difficult position they are in due to the EEOC filing such lawsuits:. By bringing actions of this nature, the EEOC has placed many employers in the "Hobson's choice" of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.
As discussed at the outset, the Fourth Circuit did not reach the merits of the case regarding the EEOC's challenge to the employer's use of criminal and credit checks.
Unique position of power
Rather, the Fourth Circuit affirmed the district court's grant of summary judgment "solely on the basis that the district court did not abuse its discretion in excluding the EEOC's expert reports as unreliable under [the Federal Rules of Evidence]. In the majority opinion, the Fourth Court reviewed in detail the district court's finding that there was an "alarming number of errors and fallacies" in the expert reports, "making it impossible to rely on any of its conclusions.
The separate concurring opinion by one of the judges was particularly harsh in its criticism of the EEOC's conduct in the litigation, commenting, "The Commission's work of serving 'the public interest' is jeopardized by the kind of missteps that occurred here" and added: "It is my hope that the agency will reconsider pursuing a course that does not serve it or the public interest well. In adding additional criticism further justifying exclusion of the expert report, the concurring opinion underscored that the primary expert's work "simply did not meet the standards for expert testimony" and it was "not a close question.
According to the concurring opinion, three problems merited "special recognition.
The concurring opinion was also critical of the EEOC based on its reliance on an expert who demonstrated a pattern of "suspect work," including another recent case by the EEOC in which summary judgment was granted based on the unreliability of the expert's report. Finally, as previously discussed, the concurring opinion concluded with scathing criticism of the EEOC, pointing out that the EEOC must "balance sometimes-competing responsibilities," which involves serving the public's interest by preventing an employer from "engaging in any unlawful employment practice," but also complying with its "duties to employers," which includes a duty to properly investigate charges, conciliate in good faith and "a duty to cease enforcement attempts after learning that an action lacks merit.
As discussed above, despite the criticism the Fourth Circuit leveled at the EEOC in Freeman , the court never reached the merits of the case. Two additional EEOC lawsuits, which were both filed on June 11, and are in the midst of being vigorously litigated by the parties, may ultimately provide enhanced guidance on the lawfulness of criminal background check policies, depending on whether the courts have the opportunity to rule on the merits of those cases. In the lawsuit against a car manufacturer, 28 which is currently pending in the District of South Carolina, the EEOC filed suit on behalf of 69 individuals who were employees of a contractor that provided logistical services to the company at one of its manufacturing facilities.
After the automobile manufacturer ended its relationship with the contractor, the employees were told they needed to reapply with a new contractor to retain their positions. As part of that application process, the automobile manufacturer directed the new contractor to perform criminal background checks on the workers and subsequently discovered that numerous employees of the prior contractor had criminal convictions in violation of the car manufacturer's criminal conviction policy.
Thus, those employees were terminated and denied rehire with the new contractor.
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The EEOC alleges that the automobile manufacturer's use of criminal background checks in hiring disproportionately screened out African American job applicants. The heart of the EEOC's complaint is that applicants were excluded from employment "without any individualized assessment of the nature and gravity of their criminal offenses, the ages of the convictions, or the nature of their respective positions.
While there have not yet been any substantive rulings on the merits of this case, a contentious discovery issue is worthy of discussion. Similar to Freeman, the defendant employer turned the tables on the EEOC and filed a motion to compel, seeking all documents relating to any policy, guideline, standard or practice used by the EEOC in considering the criminal conviction records of individuals who apply to work for the EEOC. The auto manufacturer argued that its criminal conviction policy is justified by business necessity and that the EEOC is estopped from claiming that the policy violates Title VII.
The auto manufacturer argued that the documents may reveal that the EEOC's internal practices so contradict its contentions in the lawsuit as to estop or preclude its claims. While the magistrate judge denied the auto manufacturer's motion to compel, the district judge reversed that decision. The EEOC argued that documents related to its criminal conviction background check policy were not relevant to the claims and defenses because the positions for which the EEOC utilized its policy were not similar to the positions at issue in the litigation.
However, the judge pointed out that the EEOC had not submitted its policies or the positions for which they are used, and the car manufacturer is not required to simply accept the EEOC's position that the two entities' practices are dissimilar. While the court recognized that the EEOC's policies ultimately may not be relevant to the suit, the court decided that the EEOC must nevertheless produce its internal policies to the car manufacturer. Other discovery disputes have continued to heat up in this case as well. For instance, the EEOC recently filed a motion for a protective order seeking to limit the employer from asking certain questions in deposing EEOC investigators and a manager.