EEOC Clobbered In Ban-The-Box Case, But More Cases Loom

Summary Judgment in favor of the employer in a matter involving the employer’s use of criminal background and credit checks in hiring has been upheld by The Fourth Circuit of Appeals. In granting summary judgment, a judge in a district court had called the plaintiff case in Equal Employment Opportunity Commission v. Freeman “a theory in search of facts to support it” and said that he found “a plethora of errors and analytical fallacies,” insufficient to support a disparate impact finding. Although the Fourth Circuit case is welcome news for employers, it is far from conclusionary, according to Littler attorneys who have a posted a detailed analysis of the case and how it fits into current developments in failure-to-hire litigation. In rejecting the EEOC’s expert opinions, the court never addressed the merits of the case, they point out, and failure-to-hire claims “remain an EEOC priority, and employers should assume the EEOC will learn from its mistakes in the Freeman case…” They note two other currently pending cases that deal with similar issues, and conclude with some general guidelines for employers to reduce the risk of litigation.