Bias case tossed over sloppy evidence

The Equal Employment Opportunity Commission used poor quality data as evidence in a case that accused an employer of using criminal background check information that had a disparate effect on minorities, an appeals court ruled, affirming a lower court decision.

U.S. District Judge Roger W. Titus in Greenbelt, Maryland, had harshly criticized the agency for the statistical evidence it had presented to support its charges against Dallas-based Freeman Decorating Services Inc., in his 2013 ruling in U.S. Equal Employment Opportunity Commission vs. Freeman, which granted the company summary judgment dismissing the case.

Freeman, which provides integrated services for expositions, conventions and corporate events, had credit and criminal background check policies that excluded applicants whose histories revealed certain prohibited criteria, such as a conviction for violent crime.

In its 2009 lawsuit, EEOC charged that Freeman's criminal checks had a disparate impact on black and male job applicants, and that its credit checks had a disparate impact on black job applicants. Evidence it submitted during discovery included a report by Kevin Murphy, an industrial/organizational psychologist, who subsequently provided two additional supplemental reports.

Judge Titus said in his ruling that “there was 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.”

The EEOC appealed the case, but a three-judge appellate panel of the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, agreed with the lower court's ruling. “The sheer number of mistakes and omissions in Murphy's analysis renders it 'outside the range where experts might reasonably differ,' ” said the ruling, in quoting another ruling.

In a concurring opinion, Judge G. Steven Agee said, “The Commission's work of serving 'the public interest' is jeopardized by the kind of missteps that occurred here.”

The EEOC said in a statement: "We are disappointed but are still studying the decision and have no further comment at this time."