On Friday, February 20, a
panel of judges from the United States Court of Appeals for the Fourth Circuit,
challenged the EEOC in a case involving an employer’s use of both a credit
check and criminal background check during its hiring process. The lower court
dismissed the case, and the appeals court agreed, noting that the EEOC’s
statistics expert was “utterly unreliable” and “made a mind-boggling number of
errors.” Remarkably, the court rebuked the EEOC’s continued use of this expert
(who has been found to be biased in earlier cases) as not serving the public
interest well.” 1
This case is important
because the EEOC’s enforcement position on the use of background checks rests
almost exclusively on statistics. If the EEOC is willing to rely upon a biased
manipulation of statistics, it is hard to imagine how an employer will get a
fair shake during the charge process. This case may be a call for changes to
the EEOC’s aggressive position on background checks. Thus far, one might say
the EEOC has had little success on these types of claims and might need to
reconsider its strategy.
1http://www.hr-headaches.com/wp-content/uploads/sites/5/2015/02/freeman.pdf
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