Freeman v. EEOC is one of the most talked about cases of the year in employment circles. Not only did the employer beat the EEOC in court, but defense attorneys managed to strike a huge blow against the agency’s over-reaching efforts to prove disparate impact.
If you need a refresher on the details of the case you can click here and here to read our previous blogs. Freeman’s lead attorney Donald R. Livingston spoke at the NAPBS mid-year conference and was kind enough to sit down with me afterwards to discuss the case a little more.
In essence, the EEOC said Freeman, an event staffing company, was discriminating against men, Hispanics and African Americans through their pre-employment background screening policy. That policy would not allow anyone to be hired if they had a criminal conviction in the last 7 years. (If an applicant had any pending charges, they were given time to clear things up. If they could, they would be eligible for hire.) Freeman also checked applicants’ credit reports if they were applying for certain asset-sensitive positions. The EEOC alleged men, Hispanics and African-Americans were victims of disparate impact because these groups historically have higher rates of criminal convictions and credit issues and were therefore less likely to get a job.
Mr. Livingston told me, “It was a historical accident that Freeman was selected. I think Freeman just found itself at the intersection between its own policy and the EEOC’s desire to seek out employers to challenge.”
And what an accident it turned out to be. During his presentation, Livingston outlined a long list of mistakes made by the EEOC during the prosecution of this case. Those mistakes included doing a poor job on initial statistical reports, failing to ensure their expert cleaned up the data being used to prove their case, blaming Freeman for mistakes without being able to trace them back to the company, missing basic math errors and most of all, never having real evidence of disparate impact. When you add the mistakes to the fact that Freeman actually was doing quite a bit to avoid disparate impact and was keeping good records of their efforts, Livingston says this was the wrong case for the Commission to tackle.
EEOC Effort Depressing
Comments from Appellate Judge Roger Titus rumbled through the legal and background screening communities as he accused the EEOC and its expert of gross misconduct by falsifying data and cherry-picking information. It would not be an exaggeration to say the Judge took the Commission and its expert to the woodshed. I asked Mr. Livingston what it was like watching this “debacle” unfold in court. “Only the Judge can say it’s a debacle, not us.” He continued, “We were satisfied that the Judge saw the situation in the same way that we did. I will say that we tried to keep our arguments very professional and non-judgmental, but I did say at one point in one of the briefs, that the EEOC’s effort, I found to be depressing.”
As a former general counsel for the EEOC, Livingston says he “really enjoys being between the government and the citizens.” He does it often, and he does it well. In the same week that the Fourth Circuit affirmed the District Court’s decision on Freeman, the Third Circuit affirmed the District Court in EEOC v. Allstate. “So, in one week, we were able to prevail in two decisions against the EEOC.”
It is important to note that the original complaint against Freeman was filed by the EEOC in September of 2009… years before the Commission issued its 2012 updated guidance for employers. Although the EEOC guidance would likely not change the decisions in Freeman, Livingston’s best advice for employers is to adhere to that guidance as well as they can.
Photo: Akin Gump
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