… of records at all. Instead, the panelists seem to have focused on issues like ban the box, the EEOC criminal guidance on employment background checks, and the potential danger of disparate impact discrimination against minorities.
By all accounts the briefing seems to have missed the mark. The FBI system is broken. Moreover, laws that solely require an FBI fingerprint seriously limit an employer’s options. They dictate the use of a source that is admittedly inferior and incomplete. I …
… of records at all. Instead, the panelists seem to have focused on issues like ban the box, the EEOC criminal guidance on employment background checks, and the potential danger of disparate impact discrimination against minorities.
File this one away in the category, “You Can’t Make this $h:t Up”.
The EEOC has cleared the path for 10 former contestants to sue the show’s producers for the discriminatory use of criminal background checks. The suit alleges that 31 percent of ‘Idol’ semi-finalists who were black males were disqualified for reasons “unrelated to the singing talent” and that in the show’s 10 year run none of the non-black contestants were disqualified.
According to ABC News, “The plaintiffs, all of whom were disqualified from the show over six seasons for reasons other than singing — including criminal history — were recently issued notices of “right to sue” by the Equal Employment Opportunity Commission, allowing the 429-page lawsuit they filed in July to move forward.”
The 10 plaintiffs include Jaered Andrews (season 2), Corey Clark (season 2), Jacob John Smalley (season 2), Donnie Williams (season 3), Terrell and Derrell Brittenum (season 5), Thomas Daniels (season 6), Akron Watson (season 6), Ju’Not Joyner (season 8)and Chris Golightly (season 9).
Each former contestant is seeking $25 million in damages for “economic injuries, lost business opportunities and/or lost earning potential” following their dismissal from “Idol.”
I find this case extremely interesting for five reasons:
- Who knew that American Idol was still on TV:)
- By suggesting that the plaintiffs were disqualified for reasons unrelated to their singing, they are taking an extremely narrow view of what is and what is not job-related. Sure, these people could carry a tune but if they were going to represent the show as all contestants do, then American Idol should be entitled to deny participation to those who might reflect negatively on the show’s image. In fact, that’s exactly what the show’s producers argued in their response to the complaint. They argued that they use background checks to insure that contestants who may become finalists have no legal entanglements that might ‘interfere’ with or ‘embarrass’ the show. They also said that their biggest concern with a contestant’s arrest history was not having that person available because of pending legal matters. I’m thinking that it might be an unreasonable request to ask the producer’s to reschedule a live show if someone has to appear in court.
- “American Idol” producers argue that these “contestants” are not “employees”. If they aren’t employees, then it would appear to me that the case really has no merit. Excuse the expression, but this is definitely not a black and white issue. Will a court determine that they were employees because they stood to get paid for their participation?
- And to me, the most compelling argument is that the show did not disqualify 31 black contestants who had criminal records. This suggests that there was no blanket policy in place to deny participation based on the presence of a criminal record.
- Four of the twelve winners (33%) are black. Hello! If this doesn’t demonstrate fair treatment, I don’t know what will.
I wonder what former ‘Idol’ judge Simon Cowell might say about all this.
I don’t know about you, but September has been flying by for me! The EmployeeScreenIQ office has been bustling with activity, per usual, and of course there have been quite a few blog posts lately. Of course, you should check out our blog page, but here are a few highlights. Yesterday, we released a brand new article, Time for a Wake Up Call: Are Your Criminal Background Checks Giving You a False Sense of Security? You can download the article here. In response to Monday’s tragedy, Nick shared a post confronting the issues that must be faced when it comes to preventative actions in background checks. Read Too Many Questions Unanswered About DC Gunman’s Employment Background Check for more information. Last week, we released this month’s issue of BTW, featuring Angela’s article, In Defense of Common Sense: Lessons from the Freeman Case Dismissal.
Time for a Wake Up Call? Find out if Your Criminal Background Checks Are Giving You a False Sense of Security.
As a background screening company, the key to a thorough criminal background check is gathering information that helps employers make smarter hiring decisions. This includes knowing the different types of criminal background checks, how far back to search for records, and how accuracy plays an important role when searching for criminal records. Whether you’re already knowledgeable in criminal background checks and would like a refresher or if you know very little, this guide is for you. Read More
In light of Monday’s tragedy in Washington DC, our nation again mourns the loss of innocent lives which could have been prevented. And while I desperately wanted to fire off an angry post on Monday, I intentionally sat back for two days so that I could digest all of the finger-pointing I knew would ensue. Read More
In the September issue of By The Way, our featured article highlights the recent Freeman case dismissal, in which the EEOC originally accused Freeman of disparate impact in their hiring practices. Angela shares the lessons that can be learned from this particular case and how employers can protect themselves when conducting employment background checks. Read More
For those of you interested in keeping up with the latest in compliance for pre-employment background screening and the laws that affect your use of employee background checks, follow our publication, “BTW: Your Guide to Staying Out of Hot Water.” This compliance resource has been created by our VP of Compliance and General Counsel, Angela Preston, and is a must-read for human resources and security professionals.
In the September issue of By The Way, our featured article highlights the recent Freeman case dismissal, in which the EEOC originally accused Freeman of disparate impact in their hiring practices. Angela shares the lessons that can be learned from this particular case and how employers can protect themselves when conducting employment background checks. Read more about this story here.
In her article, Keeping Tabs on Big Data to Protect Consumer Privacy, Angela shares details of a recent FTC settlement against Cetergy Check Services, Inc. for improper use of consumer information in employment background checks. Find out how this could be an issue for employers and consumer reporting agencies.
Lastly, our third article covers the National Employment Law Project (NELP) report released in August regarding the use and quality of the FBI background check database. Read more here, NELP Report: FBI Fingerprint Checks Get Thumbs Down.
New! Ask Angela? Have you ever had a compliance question you’ve been wanting to ask but never had the opportunity?
Submit a question to Angela today and you might find the answer in our next issue: email@example.com.
Read this month’s issue here:
Nearly a month has passed since U.S. District Judge Roger W. Titus slammed the Equal Employment Opportunity Commission (EEOC), dismissing the agency’s discrimination case against Freeman Cos. (Md., No: 8:09-cv-02573, 8/9/13). The EEOC sued Freeman in Maryland District Court for discriminating against workers with a criminal or credit history in 2009, and those of us who have followed the case have eagerly awaited the final decision. We also wrote about the decision when it was first released–if you missed that article you can find it here. Now that the situation has had time to sink in, I wanted to share some thoughts on the implications for employers.
By way of background, Freeman, an international provider of trade show and exhibit services, employs over 4,100 full time employees and 25,000 part time workers in the US and the UK. In the case, the EEOC claimed that Freeman’s use of credit and criminal background checks had a “disparate impact” on protected classes—namely male minority job applicants—who were more likely to be denied job opportunities due to a disproportionate impact on black males.
The heat of summer is fading (at least here in Cleveland, Ohio) and it’s clear that summer will be coming to a close before we know it. Hopefully your summer has been filled with productivity at work as well as a few days of restful vacation. Due to the sheer amount of blog posts we’ve had this summer, I thought sharing the highlights, or “best of” summer might be appropriate before we head into the crisp fall months. Even if you’ve kept up with our blog over the past couple months, there may have been one or two posts you didn’t have the opportunity to read-check out some of our most popular posts below.
1. Ever wonder what the big fuss is over accreditation? Our post, The Stats Don’t Lie: Why Should You Care About Employment Background Screening Accreditation? will tell you all you need to know. In a society where it seems that “faster is better”, this post reveals how quality should be the main focus of your background screening provider. And with that, an accredited company is a telling sign of not only thoroughness, but also a well-rounded company, having achieved a variety of standards required by the National Association of Professional Background Screeners (NAPBS).
2. A huge story earlier this summer, was of course the security leak involving Edward Snowden and the National Security Administration (NSA). This story raised a question within the background screening industry–how well are those with access to sensitive information (particularly government employees) being screened? Our post shares several points to consider for companies that hire IT employees, NSA Leak Raises Questions About Background Checks for Information Technology Employees.
3. Calling the attention of media from around the United States, was yet another case brought on by the Equal Employment Opportunity Commission (EEOC). Filing lawsuits against both BMW and Dollar General for discriminatory hiring practices, this story was of no great surprise. The EEOC has been fighting to limit the use of background checks by employers for awhile, and this case was another opportunity to strike fear into the hearts of employers regarding employment background checks. Read the full post for more information on the case, EEOC Targets Dollar General and BMW for Criminal Background Checks.
4. To challenge the EEOC’s determination that employment background checks can be perceived as racist, we posted Are Employers Racist for Conducting Employment Background Checks? Looking at the true definition of discrimination, anyone can see that employers do discriminate in every hiring decision they make—but probably not in the way most would assume.
5. You’ve likely faced court delays at one time or another while awaiting the results of a criminal background check (and if you haven’t, I’m wondering who’s doing your background checks.) Our post, Are We There Yet? Court Delays Slow Background Screening for Employers details why employers might face court delays, and not just around the holidays, but all-year round.
6. As an employer seeking to make the best hiring decisions, you want to know all of the facts. So you order an employment verification from your background screening provider. Hopefully, you trust your provider to verify all the information you request to the best of their ability. But what if your applicant hired someone to lie to your background screener? Our post, Liar, Liar. Are Job Seekers Hiring Professional Liars to Verify Resumes? details a company that claimed to do exactly that. We also share best practices and “things to know” for resume verifications.
7. Another breaking story this summer, was the release of the National Employment Law Project (NELP) report detailing that the FBI database used for background checks is not as accurate as many would believe. Our post, NELP Report Throws Cold Water on FBI Fingerprints reveals why there are weaknesses in the FBI database and shares the reasons that employers should not be forced to utilize only this source for criminal background checks.
I’ve spent a great deal of time over the last few months thinking about where the Equal Employment Opportunity Commission went awry with their stance on employers’ use of criminal background checks and how the very real concern of discrimination could be addressed. There certainly has been no shortage of events over the summer which have helped to shape my viewpoints from the Trayvon Martin case (where I think race caused prosecutors to lose because they overcharged based on public sentiment), to a Maryland judge’s embarrassing dismissal of the EEOC’s case against Freeman Companies, to Eric Holder’s recent policy change on sentencing guidelines.
I always ask our employees to bring me solutions not problems, so I decided to take my own advice and focus on what I think can be done to remedy the real issue of eliminating race discrimination in the criminal justice system (not in the employer community) and getting those with criminal records back to work. Here are my solutions:
Although we’ve already started a new week, I thought there were a few posts on our blog last week worth highlighting. Nick shared a few thoughts on the recent dismissal of the EEOC’s case, Judge Dismisses EEOC’s Employment Background Check Case As ‘Laughable’. We also released our latest Quick Takes video, Are EEOC Guidelines for Employment Background Checks Still Confusing? Lastly, we posted on state-specific background check considerations in the state of Texas, Conducting Employment Background Checks in Texas? 5 Things You Need to Know. Stay tuned for more posts this week!
Make sure to read the words in this word cloud carefully. “Laughable”. “Unreliable”. “Mind Boggling”. Those are the words Judge Roger Titus of the U.S. District Court in Maryland used when he dismissed the Equal Employment Opportunity Commission’s (EEOC) case against Freeman Companies for what the commission alleged as discriminatory hiring practices related to Freeman’s use of criminal background checks and credit reports. Read More
Since the Equal Employment Opportunity Commission (EEOC) introduced new guidelines in April of 2012, employers have had quite a bit of confusion about how this affects their use of employment background checks. With increased enforcement of these guidelines, employers should not only have a solid understanding of what they are, but also how to implement them into their hiring policy. EmployeeScreenIQ panelists, Nick, Jason, and Angela discuss the struggles related to the guidance and provide best practices to help employers remain compliant within the hiring process. Read More
From access to major cities such as Dallas, Fort Worth, Houston, San Antonio and Austin and all they have to offer, to a wealth of jobs in energy, technology, financial services and agriculture to employer friendly laws, the state of Texas is well-known as a good place for employers to conduct business. And when it comes to conducting employment background checks in Texas, it’s no different. You just need to know how it’s done. Read More
Since the Equal Employment Opportunity Commission (EEOC) introduced new guidelines in April of 2012, employers have had quite a bit of confusion about how this affects their use of employment background checks. With increased enforcement of these guidelines, employers should not only have a solid understanding of what they are, but also how to implement them into their hiring policy. EmployeeScreenIQ panelists, Nick, Jason, and Angela discuss the struggles related to the guidance and provide best practices to help employers remain compliant within the hiring process.
This episode of the Quick Takes Series covers the ever-popular, and ever-confusing topic of the latest guidelines from the EEOC.
For a recap, what are the requirements?
- If a criminal background check is done on an applicant, the employer must consider job relatedness-for example, would the criminal record prevent the potential employee from performing the job well?
- Each applicant should be provided an individual assessment. So if they do have a criminal record, essentially the employer must give them a chance to explain the criminal offense.
Nick also asks the pointed question, What if an employer doesn’t want to hire an applicant, regardless of their criminal record? Again, there’s no clear answer for this. The best option for employers is to have the best documentation possible, but know that this could still lead to an EEOC investigation.
In addition, Jason recommends being as transparent with the applicant as possible. While seemingly simple advice, giving the candidate as much insight as possible into the background screening process will provide a smooth process for both employers and the applicant. Additionally, companies should always, always speak with legal counsel regarding their hiring process and company policy.
The Bottom Line?
Employers, you must follow the guidance, but because the requirements are still somewhat confusing, consult your legal counsel.
Related EmployeeScreenIQ Content:
- EEOC Targets Dollar General and BMW for Criminal Background Checks-Blog Article
- Do Employers Care About EEOC Guidance on Criminal Background Checks?-Blog Article
- New EEOC Guidance on the Use of Criminal Records in Employment-2012 Webinar
Quick Takes is a video series blending together bits of experience and expertise from EmployeeScreenIQ’s background screening experts. With a newsroom feel, discussions surround the latest issues in the background screening industry. All of the videos were filmed unscripted-giving you the opportunity to hear genuine responses from the professionals. Topics range from social media background checks to conducting a thorough criminal records search. We’re releasing a new video every month, so stay tuned.
Make sure to read the words in this word cloud carefully. “Laughable”. “Unreliable”. “Mind Boggling”.
Those are the words Judge Roger Titus of the U.S. District Court in Maryland used when he dismissed the Equal Employment Opportunity Commission’s (EEOC) case against Freeman Companies for what the commission alleged as discriminatory hiring practices related to Freeman’s use of criminal background checks and credit reports. I’ve included a copy of Freeman’s press release for their take on the case because the EEOC didn’t see fit to allow them to respond when they announced “this egregious” case.
The outcome of this case is no surprise; so far the courts have not been swayed by the EEOC’s arguments in similar cases (see EEOC v Kaplan Higher Education). What is shocking is that the EEOC has now suffered another embarrassing setback in their quest to punish employers for their reliance on employment background checks (see EEOC v PeopleMark).
Add the recent efforts of nine state Attorneys General who have taken the EEOC to task for what they deem to be misguided and an example of gross federal overreach for their lawsuits against BMW and Dollar General and you begin to see that the courts seem to be protecting employers’ responsible use of employment background checks. I am hopeful that the EEOC will reassess their tactics and focus their energies on real instances of discrimination.
Seyfarth Shaw’s Pam Devata, Gerald Maatman Jr. and Howard Wexler did a remarkable job of explaining the judge’s ruling and the anticipated effect it will have on employers. See below.
Court Dismisses EEOC’s Background Check Lawsuit Based On Its Reliance On “Laughable” And “Unreliable” Expert Report Filled Of “Errors and Analytical Fallacies”
In a scathing opinion issued today in EEOC v. Freeman,No. 09-CV-2573 (D. Md. Aug. 9, 2013), Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a nationwide pattern or practice lawsuit brought by the EEOC (previously discussed here and here) that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. This decision marks yet another blow to the EEOC’s use of systemic lawsuits to challenge employers’ reliance on background checks in making hiring decisions.
The Court’s Opinion
Prior to analyzing the EEOC’s disparate impact claim, Judge Titus discussed the utility of credit and criminal background checks, as well as the EEOC’s recent targeting of employers for such background checks, including the recent cases it filed against BMW and Dollar General Corp. In discussing these lawsuits, Judge Titus noted that:
“Because of the higher rate of incarceration of African-Americans than Caucasians, indiscriminate use of criminal history information might have the predictable result of excluding African-Americans at a higher rate than Caucasian. Indeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States. As Freeman points out, even the EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”
Id. at 2. Turning to the specific case before him, Judge Titus focused on whether the EEOC provided the requisite evidentiary foundation that Freeman’s policies had a disparate impact based on reliable and accurate statistical analysis. Judge Titus held that the EEOC had not made such a showing and spent a majority of his 32-page ruling bashing the “expert” reports prepared by Dr. Kevin R. Murphy, the EEOC’s statistical expert. This is not the first time a U.S. District Court Judge has criticized the EEOC’s reliance on Dr. Murphy’s statistical analysis. As previously reported here, Judge Patricia A. Gaughan of the U.S. District Court for the Northern District of Ohio granted summary judgment to the defense in EEOC v. Kaplan Higher Education Corp. (discussed here) – in part based on the “great concern” she had regarding several aspects of Dr. Murphy’s disparate impact analysis in that case.
Judge Titus pulled no punches in taking the EEOC to task based on the flaws in the data it relied upon in support of its disparate impact claims, labeling Dr. Murphy’s expert reports as: “laughable”; “based on unreliable data”; “rife with analytical error”; containing “a plethora of errors and analytical fallacies” and a “mind-boggling number of errors”; “completely unreliable”; “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded”; “distorted”; “both over and under inclusive”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.” Id. at 14-20.
Given Dr. Murphy’s “continued pattern of producing a skewed database plagued by material fallacies” the EEOC left Judge Titus with “no choice but to entirely disregard his disparate impact analysis.” Id. at 24-25. Left without credible expert analysis, Judge Titus held that the EEOC’s case cannot survive as “it is sufficient for Defendants to point out the numerous fallacies in Murphy’s report, which raise the specter of unreliability” to defeat the EEOC’s prima facie case. Id. at 24.
Finally, Judge Titus held that even putting aside the unreliability of Dr. Murphy’s expert reports, the EEOC nonetheless failed to identify the specific policy or policies causing the alleged disparate impact and made “no effort to break down what is clearly a multi-faceted, multi-step policy.” As the EEOC could not demonstrate “which such factor is the alleged culprit” of the purported disparate impact, Judge Titus held that the EEOC failed to meets its prima facie case of discrimination. Id. at 25-28.
Implications for Employers
The defeat of the EEOC’s case is significant. Judge Titus’ decision is yet another favorable opinion for employers who fall victim to the EEOC’s “do as I say, not as I do” litigation tactics, especially in pattern or practice cases that rely heavily on the use of statistical analysis. While the criticism of Dr. Murphy’s statistical analysis is noteworthy given his use as an expert in many of the EEOC’s larger cases, an equally important take-away for employers is the fact that Judge Titus rejected the EEOC’s argument that it had no duty to identify the specific aspect of Freeman’s policies that caused the alleged disparate impact and could merely rely upon the policy in general in support of its claims – a tactic frequently advanced by the EEOC in these type of cases.
Given the magnitude of this decision, it is possible (if not likely) the EEOC will appeal Judge Titus’ decision, and we will keep you posted with any further updates regarding this important systematic case.