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EEOC Loses Criminal Background Check Case

This blog has previously covered the EEOC’s attempt to
enforce a Title VII disparate impact theory against an employer utilizing a
strict criminal background check.  The
EEOC had commenced suits against BMW and Family Dollar, and here, lost a case
against Freedman Companies.  The district
court in the Freedman case issued a rather strong rebuke of the EEOC’s

The court first noted that conducting a criminal or credit
background check could be viewed as a component of a reasonable and thorough
hiring process
.  The court listed many
reasons why a retailer would wish to conduct a criminal background check, and
noted that the EEOC itself conducts checks on every applicant to its office.  The court noted that a disparate impact case
would have to be focused on a specific practice, with evidence showing it had a
disparate impact because of a prohibited factor.

The court was highly critical of the statistical expert the
EEOC used to demonstrate disparate impact, noting that the database he used was
full of errors, and that he had failed to use a random sample of the data that
was provided by the company.  The court
was dismayed by the expert’s failure to consider decisions made over the
relevant time-period, and by his use of data in addition to that provided by
the company.  The court finally chastised
the EEOC for bringing a case without relevant data, and noted that
national-level data was not applicable to the case at hand.

Although the case didn’t break any new ground in terms of
disparate impact criminal background check litigation or the use of statistical
data, it may encourage employers to be more critical of the experts the EEOC
uses in the future in an effort to show that the statistical analysis is

In other interesting news, the Minnesota
Orchestra, which was on strike for all of last season, may continue to be
locked-out after the orchestra’s musicians rejected a recent settlement offer
put forward by management
.  The offer
required the musicians to return to work for two months at their old salaries,
and then if no new deal was struck, to work for two years with their base pay
cut by nearly a quarter.  The musicians
had wanted management to accept a proposal put forward this summer by former
senator George Mitchell, which would have allowed the musicians to work for two
months at their old salary levels, followed by two months at a 6 percent pay
cut.  The orchestra’s director has said
that the musicians need to be back at work by September 30, and in order to
meet that deadline a new contract must be agreed to by September 15.  Stay tuned.

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