For those of us without law degrees, court decisions are rarely an interesting read. That is not the case, however, with the recent decision from the Fourth Circuit Court of Appeals regarding EEOC v. Freeman. Not only did the three appellate judges decide to affirm the district court’s decision to throw out testimony from the EEOC’s expert Kevin Murphy, but they also affirmed the decision to grant summary judgment to Freeman. Judge G. Steven Agee even went out of his way to slap down the Commission and its so-called expert.
Read the decision for yourself, or continue for a quick synopsis. Bottom-line, after this decision, the EEOC “expert” might find it hard to find a job.
Freeman provides support staff to convention centers across the country. In 2001 they started conducting background checks. In 2008 an applicant filed a discrimination charge after being denied a job. The EEOC began an investigation and determined that Freeman’s criminal and credit checks had a disparate impact on African-American, Hispanic and male job applicants. Conciliation failed and the case went to court. That’s where things started falling apart for the Commission.
The EEOC hired expert Kevin Murphy to crunch the numbers, but the judge was concerned about the “alarming number of errors and analytical fallacies” in his work. Murphy was given a chance to fix some of the mistakes in his analysis, but came back with even more errors. Hundreds of records that supported Freeman were omitted, and items that supported the alleged discrimination were double counted. Judge Roger W. Titus granted Freeman’s motion to exclude Murphy’s testimony because it was “rife with analytical errors” and “completely unreliable” under Federal Rule of Evidence 702.
The Fourth Circuit agreed and affirmed the summary judgment for Freeman saying the district court did not abuse its discretion in excluding the EEOC’s expert’s reports.
That could have been the end of it, but as I mentioned before, Judge G. Steven Agee wrote his own concurring opinion accusing Kevin Murphy of a pattern of intentionally “cherry-picking” data to produce “meaningless, skewed” statistics. The judge pointed out similar problems in Murphy’s work in EEOC v. Kaplan Higher Education Corp., Cooper v. Southern Co. and Boelk v. AT&T. Agee called Murphy’s work “an egregious example of scientific dishonesty” and a “record of slipshod work, faulty analysis and statistical sleight of hand.” Judge Agee wonders at the EEOC’s decision to continue appeals to defend his testimony.
All of this fuss over the poorly produced data seems to be overshadowing the real lesson from this case. That lesson is that District Court Judge Titus said you cannot use the fact that more African-Americans have criminal records than Caucasians to prove disparate impact in the workplace. He says, “careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process,” and the EEOC was not able to prove that Freeman used background screening information in any way that violates Title VII.
Will the outcome of this case shape the way the EEOC approaches similar cases in the future? Only time will tell.
Jennifer Gladstone is a news anchor and journalist with more than 20 years of experience in front of the camera. She's worked in several markets, large and small, and has performed nearly every task needed in a newsroom. As EBI’s Screening News Editor, she keeps EBI’s customers and blog subscribers up to date on the latest screening news and legislative alerts affecting companies of all sizes.