Fourth Circuit Affirms Summary Judgment Against EEOC In Background Check Suit

Last week, in Equal Employment Opportunity Commission ("EEOC") v. Freeman, No. 13-2365 (4th Cir. Feb. 20, 2015), the Fourth Circuit affirmed the award of summary judgment against the EEOC in its suit alleging that the defendant's use of credit and criminal background checks had a "disparate impact" on African-American job applicants in violation of Title VII of the Civil Rights Act of 1964. Consistent with the Sixth Circuit's ruling last year in EEOC v. Kaplan Higher Education Corp., 748 F.3d 749 (6th Cir. 2014), the Freeman decision also turned on the agency's failure to muster the expert testimony necessary to meet its evidentiary burden in a disparate impact case.

By way of background, the defendant Freeman required criminal background checks for all applicants and credit checks for positions involving money handling or access to sensitive financial information. Company policy disqualified applicants if their credit or criminal histories revealed "certain