We’ve reported earlier in this space on how the Obama administration’s Equal Employment Opportunity Commission (EEOC) keeps getting slapped down by federal judges over what we called its “long‐​shot lawsuits and activist legal positions.” Now the Fourth Circuit has weighed in on a high‐​profile employment screening case from Maryland — and it too has given the EEOC a good thwacking, in this case over “pervasive errors and utterly unreliable analysis” in the expert testimony it marshaled to show the employer’s liability. Those are the words of a three‐​judge panel consisting of Judge Roger Gregory, originally appointed to the court by Bill Clinton before being re‐​appointed by his successor George W. Bush, joined by Obama appointee Albert Diaz and GWB appointee G. Steven Agee. 


The case arose from the EEOC’s much‐​publicized initiative of going after employers that use criminal background checks in hiring, which the agency insists often have improper disparate impact on minority applicants and have not been validated as necessary for business reasons. It sued the Freeman Cos., a provider of convention and exposition services, over its screening methods, but Freeman won after district court judge Roger Titus shredded the EEOC’s proffered expert evidence as “laughable,” “unreliable,” and “mind‐​boggling.” The EEOC appealed to the Fourth Circuit. 


If it was expecting vindication there, it was very wrong. Agreeing with Judge Titus, Judge Gregory cited the “pervasive errors and utterly unreliable analysis” of the commission’s expert report, by psychologist Kevin Murphy. “The sheer number of mistakes and omissions in Murphy’s analysis renders it ‘outside the range where experts might reasonably differ,’ ” which meant it could not have been an abuse of discretion for Judge Titus to exclude it. 


Strong language, yet Judge Agee chose to write a separate concurrence “to address my concern with the EEOC’s disappointing litigation conduct.” Noting a pattern in multiple cases, Agee faulted the commission’s lawyers for circling the wagons on behalf of its statistical methods despite repeated judicial hints that it needed to strengthen its quality control. “Despite Murphy’s record of slipshod work, faulty analysis, and statistical sleight of hand, the EEOC continues on appeal to defend his testimony.” If the agency doesn’t watch out, exasperated judges might start imposing more sanctions against it. 


Incidentally, as a counterpoint to the EEOC’s bullheadedness, the U.S. Commission on Civil Rights a year back did a briefing program on employee screening and criminal background checks that tries to include an actual balance of views. You can read and download it here.