The Equal Employment Opportunity Commission may want to get a new expert witness.
In two cases that are part of the EEOC's larger effort to crack down on what it considers discriminatory hiring practices, a report by its own expert witness, workplace psychologist Kevin Murphy, has tripped up its efforts.
The latest flub came on Friday when a district court judge in Maryland tossed an EEOC lawsuit against Freeman Companies that accused the event services company of discriminating against minorities and males. The suit stems from a September 2009 complaint in which the EEOC alleged that Freeman used discriminatory hiring criterion against African Americans by looking at the credit history of some of its job applicants and against African American, Hispanic, and males by considering candidates' criminal history. The agency claimed that the hiring requirements resulted in disparate impact on proposed class members.
In his opinion Friday, Judge Roger Titus wrote that while "some specific uses of criminal and credit background checks may be discriminatory and violate the provision of Title VII, the EEOC bears the burden of applying reliable expert testimony and statistical analysis that demonstrates disparate impact stemming from a specific employment practice before such a violation can be found."
Freeman took sharp aim at the report provided by expert witness Murphy, calling it unreliable, rife with analytical errors, untimely, and thus inadmissible to demonstrate the existence of disparate impact—an assessment with whichTitus agreed.
In a statement, the EEOC said that it was disappointed in the judge's decision, but it pointed out that the judge "did acknowledge that certain uses of criminal history or credit information can be discriminatory." It added, "We are considering our options."
Titus's criticism of Murphy's report echoed an opinion by a federal court judge in the Northern District of Ohio who in January tossed a similar EEOC suit that also relied on Murphy's expert testimony. In that case, which accused education company Kaplan, Inc. of using pre-employment credit checks that resulted in an unlawful disparate impact on African American job seekers, the judge found that the EEOC had failed to provide reliable statistical evidence of discrimination. The agency's appeal of the decision is pending.
The two suits were part of a larger EEOC assault on discriminatory recruitment and hiring practices. The agency listed the elimination of such prohibitive hiring methods as priority number one in its latest strategic enforcement plan.
"The neon sign of EEOC's enforcement program is getting dismantled by courts," Gerald Maatman of Seyfarth Shaw, who represents Kaplan, said in an interview Friday.
Donald Livingston of Akin Gump Strauss Hauer & Feld, who represented Freeman, said in an interview Friday that Titus's decision in his client’s case bolsters recent criticism of the EEOC policy that's been described as "sue first, investigate later." Two recent cases have called out the EEOC for allegedly taking a shot-in-the-dark approach to filing lawsuits.
Last week in a suit filed in district court in Washington, D.C., Case New Holland Inc., a manufacturer of agricultural and construction equipment, accused the EEOC of sending out mass e-mails to the business accounts of more than 1,000 CNH employees in an effort to attract potential plaintiffs in a class action against the company. And earlier this week, a federal judge in Iowa City, Iowa awarded a record $4.1 million in attorneys’ fees to trucking giant CRST Van Expedited Inc. and its lawyers at Jenner & Block after finding that the EEOC had lapsed in its duty to investigate harassment claims before filing suit.
EEOC spokeswoman Justine Lisser said the agency declined to respond specifically to that criticism. In regards to the CRST decision, she said the agency is "deeply disappointed" and is considering the next steps.
"Right now we're in a period where the EEOC is seeking to expand Title VII through court opinions," Livingston said. "It's doing it in all sorts of different ways," he said, including the broad application of disparate impact claims to credit and criminal background checks.