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Litigation adds complexity to once-simple laws


Just how far can a law be stretched before it breaks? The question arises in connection with at least two apparently very different laws: Title VII of the Civil Rights Act of 1964, which bans discrimination on the basis of race, color, religion sex and national origin; and the Federal Wiretap Act, which is intended to protect privacy in communications.

Title VII may seem fairly straightforward. But recently, the U.S. Equal Employment Opportunity Commission has been aggressively pursuing litigation against employers on the basis that conducting criminal background checks can violate Title VII because it has a disparate impact on minorities.

The laudable impulse behind these EEOC actions is that blacks and Hispanics are arrested at a rate that is two to three times their proportion of the general population.

But as Richard B. Cohen, a partner with law firm FisherBroyles L.L.P. in New York correctly points out, there is no explicit mention of criminal background checks in the law.

“The problem is the EEOC has sort of gone one level beyond the protected categories” in stating criminal background checks have a disparate impact on minorities, Mr. Cohen said.

Barry A. Hartstein, shareholder with law firm Littler Mendelson P.C. in Chicago has remarked, the EEOC can be commended for “attempting to move the dial” on this societal issue, and striving to establish a public policy that provides ex-offenders with the opportunity to put their past behind them and play a meaningful role in society. “It's merely a question of how and where you draw the line,” he said.

But the fact remains the law does not directly address the issue of criminal background checks.

The Federal Wiretap Act was originally passed as Title III of the Omnibus Crime Control and Safe Streets Act of 1968. As pointed out in a blog by David Deitch, a partner in law firm Ifrah Law P.L.L.C. in Washington, these provisions were included, at least in part, in response to concerns about investigative techniques used by the FBI and other law enforcement agencies that threatened individuals' privacy rights.

But the FBI was not involved in the recently filed litigation in Jessica N. Bennett v. Lenovo (United States) Inc. and Superfish Inc., in which the plaintiff seeks to represent a class of purchasers of the Chinese-made Lenovo laptop computers in a lawsuit that claims its preloaded software, which it describes as malicious spyware, directs users to preferred advertisements.

Yet the Federal Wiretap Act's violation was one of the claims included in the complaint. Clearly, when Congress originally passed this law almost 50 years ago, it had never heard of the Internet, let alone had computer software in mind.

Of course, no one knows whether this claim will fly. The only thing we can be sure of, in fact, is that defense attorneys will be kept busy — and that companies' legal costs will continue to rise.