In an opinion released last Friday, the District Court of Maryland granted summary judgment dismissing EEOC’s disparate impact criminal background/credit background lawsuit against the face-to-face marketing services company, Freeman. This is the second high-profile criminal background back ground case in which EEOC has suffered a significant setback since the April 2012 issuance of the Agency’s Enforcement Guidance on the Consideration of Arrest & Conviction Records in Employment Decision.
The crux of the Freeman decision was EEOC’s inability to produce reliable, statistical analyses to support a claim of disparate impact as well as the Agency’s failure to identify as specific component of the Company’s background check process allegedly responsible for causing the disparate impact. Because of these deficiencies, the court held the Agency was unable to satisfy its burden to establish a case of discrimination.
Disparate impact claims, if established, can be extremely difficult to defend. Freeman defeated EEOC (for now; EEOC may appeal) by attacking the Agency’s ability to criticize Freeman’s actual practices. One way to replicate Freeman’s success, whether subject to scrutiny by EEOC or OFCCP, is by establishing a multi-faceted criminal background review process that takes into consideration the Agency’s recommended targeted and individualized review.