EEOC Suffers Setback in Efforts to Clamp Down on Use of Background Checks

The EEOC’s efforts to clamp down on the use of criminal record information were dealt a significant setback on August 9, 2013 when the U.S. District Court of the District of Maryland threw out a case that had been brought against Freeman, a service provider for corporate events with offices around the country (EEOC v. Freeman [09-2573] Memorandum Opinion and Order 8.9.13).  The case grew out of the EEOC’s longstanding concern that the indiscriminate use of criminal record information by employers to screen out applicants has a disparate impact and is therefore unlawful under Title VII.  The EEOC believes employers using criminal record information must disregard arrest information and only use conviction information after considering the age of the offense, the seriousness of the offense, and the relationship of the offense to the position being sought.  Applicants also must be given an opportunity, in the EEOC’s view, to explain or correct the information in their records before being rejected.  However, in the Freeman case, the court said the EEOC had failed to show any disparate impact as a result of the company’s hiring practices.  The court tore apart the EEOC’s expert reports, calling them “rife with analytical errors” and “laughable.”  Even if evidence of a disparate impact had been present, the court said that the EEOC failed to link such evidence to any particular practice of Freeman and could not simply rely on the “collective results” of Freeman’s hiring process.  “The story of the present action,” according to the court, was “that of a theory in search of facts to support it.”  The Freeman decision is an embarrassing outcome for the EEOC that will undoubtedly make the agency’s enforcement activities in this area more difficult and provide a road map to victory for future defendants.

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