EEOC Slammed by Another Court on Background Check Allegations

February 27, 2015

The Equal Employment Opportunity Commission relied on expert testimony filled with "an alarming number of errors and analytical fallacies" in its attempt to prove that a firm's criminal background and credit checks had an unlawful disparate impact on minority job applicants, the U.S. Fourth Circuit Court of Appeals ruled this week.  The defendant company, which provides event planning services nationally, used a criminal background check that applied to all applicants and a credit history check that applied to applicants for "credit sensitive" positions involving money handling or access to sensitive financial information.  Both policies excluded applicants whose reports revealed prohibited criteria, such as violent crime convictions.  The EEOC intervened after an applicant denied a position with the firm filed a charge of discrimination.  To demonstrate its claim that the background checks violated Title VII, the EEOC relied, in part, on a report from an industrial/organizational psychologist, which a district court in Maryland found to contain a "mind-boggling" number of errors.  That court also found that the EEOC's subsequent attempts to submit corrected data failed to rectify the faulty information, and even "managed to introduce fresh errors" into its analysis, such as double-counting applicants who had failed their background checks.  The Fourth Circuit did not directly rule on the EEOC's disparate impact claim but agreed with the district court's finding that the EEOC's data did not meet federal court standards for expert testimony.  In a concurring opinion, Judge G. Steven Agee said the EEOC's general litigation conduct "jeopardized" the Commission's work of serving the public interest.