A federal judge described Obama administration claims that corporations use background checks to target blacks as “worthless” and a “theory in search of facts” as he granted a motion to dismiss a case.
“There are simply no facts here to support a theory of disparate impact resulting from any identified, specific practice of the defendant,” wrote Judge Roger W. Titus in the case brought by the Obama administration against Freeman Inc., a company that provides services for expositions, conventions, corporate events, meetings and programs.
The company’s revenues exceed $1.3 billion annually, and it employs 3,500 fulltime workers and tens of thousands of part-time workers.
The Equal Employment Opportunity Commission alleged that the company, by checking the backgrounds of prospective employees, was illegally discriminating against blacks. But the Obama administration failed to provide any evidence, the judge ruled.
“While some specific uses of criminal and credit background checks may be discriminatory and violate the provision of Title VII, the EEOC bears the burden of supplying reliable expert testimony and statistical analysis that demonstrates disparate impact stemming from a specific employment practice before a violation can be found …. the EEOC has failed to do so.”
The emphasized words were in the judge’s original document.
The Washington watchdog Judicial Watch called the judge’s description of the Obama administration’s case “laughable,” “distorted,” “cherry-picked,” “worthless” and “an egregious example of scientific dishonesty.”
“That kind of whipping from a federal judge has got to hurt though it’s unlikely to deter the administration from spending more taxpayer dollars to file frivolous lawsuits against employers who use the checks to screen job applicants,” the organization said Wednesday.
“Of interesting note is that the EEOC conducts criminal background checks as a condition of employment and credit background checks for most of its positions. For some reason, it’s not discriminatory against minorities when the agency does it,” the group reported. “But it is when private businesses utilize the tool because information about prior convictions is being used to discriminate against a racial or ethnic group, according to the EEOC. ”
Obama’s EEOC claimed the business “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.”
Judicial Watch said that to “support this absurd argument, the agency presented the court with ‘expert’ data, including a detailed statistical analysis, supposedly proving its disparate impact claims.”
But Titus found the government argument “based on unreliable data,” “rife with analytical error,” with “a plethora of errors and analytical fallacies” and a “mind-boggling number of errors.”
Further, it was “completely unreliable,” “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded” and “distorted.”
The judge said: “By bringing actions of this nature, the EEOC has placed many employers in the ‘Hobson’s choice’ of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers.”
The judge noted there are legitimate reasons for background checks.
“For many employers, conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious. Employers have a clear incentive to avoid hiring employees who have a proven tendency to defraud or steal from their employers, engage in workplace violence, or who otherwise appear to be untrustworthy and unreliable.”
The Obama administration alleged that the company, by doing background checks, had created a “pattern or practice” of “discrimination against African-American job applicants by using poor credit history as a hiring criterion … and against African-American, Hispanic, and male job applicants by using criminal history as a hiring criterion.”
The judge went even further, blasting the EEOC for making a “mockery” of court standards by “continually offering new expert reports … well past the applicable deadline.”
The reports, he said, were “poorly disguised attempts to counter defendant’s arguments with new expert analysis.”