April 8, 2014

"An egregious example of scientific dishonesty"

By Joshua P. Thompson Senior Attorney

Back in August I reported on a case out of the federal district court in Maryland, where the EEOC was trying to stop a business from undertaking criminal background checks on job-applicants.  In EEOC v. Freeman, the district court rejected the EEOC’s disparate impact lawsuit, because the data it collected was woefully insufficient.  In a very strongly worded opinion, the court explained how EEOC’s statistical evidence was “laughable”; “based on unreliable data”; “rife with analytical error”; “distorted”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.”

In a somewhat surprising move, EEOC appealed the district court’s decision to the Fourth Circuit Court of Appeals.  PLF decided to get involved in the case, and today we filed our friend of the court brief in support of Freeman.  While we agree with the district court’s holding — that the EEOC failed to present reliable statistical data showing criminal background checks result in a disparate impact — our brief addressed a different point.  Namely, that even if the EEOC could demonstrate a reliable statistical disparity as a result of the Freeman’s use of criminal background checks, there is nothing illegal about the practice because it is something that a reasonable and prudent employer should do.

Under Title VII businesses are allowed to rebut disparate impact cases by showing that the challenged practice is “job-related” and “consistent with business necessity.” Conducting criminal background checks on potential employees satisfies these criteria. Freeman is a business with tens of thousands employees; it needs an objective method of ensuring that the employees it has hired are safe, reliable, and productive. Criminal background checks serve those purposes.  They are highly successful at predicting employee behavior, and they are obtained at a low cost.

PLF’s amicus brief makes a number of other important points.  For example, we explain how prohibiting criminal background checks actually reduces minority employment.  When background checks are prohibited, employers have a tendency to rely on pernicious stereotypes when evaluating applicants.  In contrast, criminal background checks lay bare the truth about individuals, and employers are more likely to hire minorities when they have more information about them.  Additionally, we explain that failure to conduct criminal background checks can result in expensive lawsuits.  If an employer hires a violent person who then commits violence the workplace, many jurisdictions would hold the employer liable for negligent hiring if they failed to conduct a criminal background check beforehand.

This is just the latest example of the Obama Administration using disparate impact in ways never foreseen by the drafters of Title VII.  Our discrimination laws should ensure equal treatment under the law,  but by suing employers for natural business decisions that result in disparities, the Administration is forcing employers to engage in prophylactic racial balancing to avoid disparate impact liability.

 

 

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