Judge Protects Employers’ Use of Background Checks

Recent legislation has attempted to limit how and when employers can use credit reports and criminal background checks during the hiring process. In pursuit of this, the Equal Employment Opportunity Commission (EEOC) has brought suits against a number of companies that the EEOC judges have been using background checks improperly. This week brought a setback for them, however, as Judge Roger Titus of the U.S. District Court in Maryland threw out their case against Freeman Companies.

Freeman Companies sued by EEOC

The EEOC was attempting to prove that Freeman Companies had been overly zealous in their use of employment checks. However, Judge Titus didn’t see the matter the same way, and his decision was no surprise. Other courts have taken similar views, including nine state Attorneys General who have chosen to protect “employers’ responsible use of employment background checks.” The EEOC, on the other hand, says its aim is to protect applicants from discrimination which background checks might make them privy to.

EEOC requires its own background checks

According to the details of EEOC v. Freeman, the company “unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants.” Because these groups tend to have higher rates of incarceration, an impact on their employability might be predicted. However, Judge Titus said, “This is simply not the case.” He went on to explain that use of criminal background checks can be an essential part of the application process. In fact, he said, “The EEOC conducts criminal background investigations as a condition of employment for all positions, and conducts credit background checks on approximately 90 percent of its positions.”

Flaws in EEOC arguments highlighted

Another flaw in the EEOC’s argument Judge Titus pointed out was their use of faulty statistical information. Its data was based on reports by the EEOC’s statistical expert, Dr. Kevin R. Murphy, who has come under fire in the past for utilizing biased statistics. This time, Judge Titus pulled out all the stops, calling Murphy’s reports “laughable,” “rife with analytical error,” “completely unreliable,” and “so full of material flaws that any evidence of disparate impact derived from an analysis of its contents must necessarily be disregarded.”

Finally, to put a period to his decision, Judge Titus pointed out that the EEOC couldn’t pinpoint which factor of Freeman, Inc’s policy it was that made their use of employment background checks improper. This decision could be landmark, as it sets precedence for future decisions on the same topic to continue to be in favor of the employers.

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FBI Background Checks Contain Misleading Information

The FBI repository of criminal records is thought of as the most complete and accurate source of background checks in the country; but is it? Recent reviews of the accuracy of FBI-provided background checks seem to indicate the database isn’t as infallible as it may seem. In fact, according to a 2006 U.S. attorney general’s report estimated that “half of the FBI’s arrest records did not include disposition information.” This means that the initial arrest of an individual has been recorded, but not the outcome of that arrest.

Arrest records missing outcomes

A spokesman for the FBI’s Criminal Justice Information Services explained in a statement that it lies with the states to update their records on a regular basis to keep them accurate and complete. However, a 2010 report by the Justice Department found that “in about half the states, as many as two in five records were missing final outcomes.” And the amount of time needed for updated information transmission varies drastically state to state, starting at less than a day in Delaware and going up to 555 days in Kansas.

Background checks affect employment

Not all jobs require FBI background checks; however, in 2007 the Transportation Security Administration made them mandatory for port workers. In the nearly six years since then, over 120,000 applications have been disqualified based on the background check. Half of those disqualified petitioned or appealed the ruling and 94 percent of those were successful in their suits.

Another arena where FBI screenings were an issue was in 2010 when the U.S. Census Bureau received 4 million job applications. A quarter of those were disqualified after background checks were run, including Precious Daniels of Detroit, who said she was “arrested in 2009 during a peaceful protest” but her charges were dropped. Scotty Desphy was also turned away when an expunged arrest from 28 years ago showed up on her rap sheet.

Applicants need time to address background check results

Due to the high probability of employers receiving erroneous information from FBI background checks, the FBI urges employers to allow applicants time challenge and correct their criminal records. However, applicants are not always going to know why they were disqualified and it is solely their responsibility to prove that a mistake was made.