EEOC Criticized on Background Checks

February 27, 2015

On February 20, 2015, a unanimous United States Court of Appeals for the Fourth Circuit affirmed in EEOC v. Freeman, No. 13-2365 (4th Cir. Feb. 20, 2015) that an expert’s report and testimony offered by the Equal Employment Opportunity Commission (“EEOC”) was unreliable, and therefore, inadmissible under Federal Rule of Evidence 702. But EEOC v. Freeman represents a broader loss to the EEOC – the ruling by the Fourth Circuit excoriated the agency for relying on objectively bad evidence, evidence that the Sixth Circuit Court of Appeals had specifically rejected previously in another case.

The EEOC in Freeman offered the “expert evidence” of Kevin Murphy, an industrial/organization psychologist, in support of the agency’s contention that Freeman’s use of criminal background and credit history checks in its hiring practices were in violation of Title VII. Finding the testimony and report of Mr. Murphy to be inadmissible under the Federal Rules of Evidence, the Fourth Circuit honed in on several glaring “errors and analytical fallacies” in Mr. Murphy’s research. Accordingly, the Fourth Circuit affirmed the district court’s exclusion of Mr. Murphy’s expert testimony and report. Judge G. Steven Agee, in concurrence with the majority’s opinion, went much further and took the EEOC to task. Judge Agee expressed “concern with the EEOC’s litigation conduct.” He noted that the EEOC continues to use “expert testimony from a witness whose work has been roundly rejected in our sister circuits for similar deficiencies to those we observe here.”   There were three particular problems. First, Murphy’s testimony “omitted important information from relevant periods and locations.” Secondly, Murphy undeniably “cherry-picked” his information. Finally, his “analysis contained many obvious errors and mistakes, and these ‘factual deficiencies’ further evidence his ‘faulty methods and lack of investigation.’”   Judge Agee concluded that the EEOC’s actions were “disquieting in the context of what appears to be a pattern of suspect work from Murphy.”

As Judge Agee recognized, the EEOC “wields significant power” that can be “expected to have broader consequence.”  Therefore, the EEOC “must be constantly vigilant that it does not abuse the power conferred upon it by Congress.”  Judge Agee concluded by ruling that “that [the EEOC’s] exercise in vigilance has been lacking.  It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.”

While the Freeman decision offers no insight as to whether Freeman’s criminal background and credit history check policy was lawful, it does indicate an emerging trend of skepticism concerning the EEOC’s aggressive and novel application of Title VII to pre-employment screening among federal courts. The Freeman decision also indicates that the EEOC is willing to pursue litigation in order to advance its belief that the use by employers of criminal background and credit history checks is discriminatory and should be limited by the courts, even when the evidence in the case it chooses to pursue does not support a claim of discrimination.