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Judge chastises EEOC in criminal background check case ruling


In a strongly worded opinion, a federal district judge has granted an employer summary judgment dismissing a U.S. Equal Employment Opportunity Commission lawsuit in which the company was accused of using criminal background check information that had a disparate impact on minorities.

The EEOC said it is considering its options in light of Friday's ruling by U.S. District Court Judge Roger W. Titus in Greenbelt, Md., in U.S. Equal Employment Opportunity Commission vs. Freeman (Freeman Decorating Services Inc.).

In the ruling, Judge Titus harshly criticized the statistical evidence presented by the EEOC to support its charges, and said the agency had also failed to identify the specific policy or policies that caused the alleged impact.

He also said the EEOC has put many employers in the position of choosing between exposing themselves to potential liability by ignoring criminal history and credit backgrounds or “incurring the wrath of the EEOC.”

The focus of the ruling is the criminal background check policy of Dallas-based Freeman Decorating Services Inc., a family-owned company with 3,500 full-time and 25,000 part-time and seasonal workers that provides integrated services for expositions and other events, according to the ruling.

In a lawsuit originally filed in 2009, the EEOC did not challenge any of the company's specific criteria or procedures, but charged that its policy produced a disparate impact on protected classes, according to the ruling.

Following a number of motions, the EEOC's current “credit class” for Freeman consist of 51 African-Americans who were allegedly unlawfully excluded from employment between March 23, 2007, and Aug. 11, 2011, and a criminal class of 83 African-Americans males who were allegedly unlawfully excluded from employment between Nov. 30, 2007, and July 12, 2012, according to the ruling.


“The EEOC attempts to make a statistically sufficient demonstration of disparate impact” through two experts' reports, says the ruling. However, focusing largely on a report by Kevin R. Murphy, the ruling says there is “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.”

Among the judge's criticisms is that Mr. Murphy's database “represents only a distorted fraction of the time period relevant in this case” and that he “cherry-picked” data to support his conclusion of a disparate impact. A report by another expert is “likewise unreliable and inadmissible,” says the ruling.

“The story of the present action has been a theory in search of facts to support it,” concludes Judge Titus' ruling. “But there are simply no facts here to support a theory of disparate impact resulting from any identified, specific practice of the defendant.

“Indeed, any rational employer in the United States should pause to consider the implications of actions of this nature brought based upon such inadequate data. 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.


“Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require,” says the ruling, in granting the defendant's motion for summary judgment dismissing the case.

An EEOC spokeswoman said, “While we are disappointed in the judge's decision, he did acknowledge that certain uses of criminal history or credit information can be discriminatory, and so at this point we are considering our options.”

Rod M. Fliegel, a shareholder with law firm Littler Mendelson P.C. in San Francisco, said he anticipates the EEOC will appeal the ruling.