Hostile Courts Present Obstacle to Success
The U.S. Equal Employment Opportunity (EEOC) has come under attack in recent weeks in federal courts, raising questions about its ability to implement its new strategy of filing systemic lawsuits.
Earlier this month, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a nationwide pattern or practice lawsuit brought by the EEOC that alleged that Freeman, Inc., a service provider for corporate events, unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013),
In another case, EEOC v. CRST Van Expedited, Inc., Chief Judge Linda R. Reade of the U.S. District Court of Iowa ruled that the Commission must pay CRST, one of the nation’s leading transport companies, a judgment of $4,694,422.14 stemming from a lawsuit filed by the EEOC alleging sex discrimination on behalf of trainee Monika Starke and other similarly situated employees. She had earlier dismissed the lawsuit.
In their decisions, the judges eviscerate the performance of the EEOC, the federal agency that is responsible for enforcing the nation’s discrimination laws.
All of this occurs in a climate that is not favorable to workers’ rights. The U.S. Supreme Court is the most anti-employee court in modern history and has issued decisions this year making it more difficult for workers to win class action and discrimination cases. Research also shows that discrimination cases are dismissed at a higher rate in federal court than other types of cases.
In the Freeman decision, Judge Titus points to the seeming irony of the EEOC’s goal of prohibiting background checks in hiring. He notes 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. Judge Titus acknowledged that credit and criminal background checks adversely affect some groups more than others but maintained that these checks are essential. According to Judge Titus:
“Because of the higher rate of incarceration of African-Americans than Caucasians, indiscriminate use of criminal history information might have the predictable result of excluding African-Americans at a higher rate than Caucasian. Indeed, the higher rate might cause one to fear that any use of criminal history information would be in violation of Title VII. However, this is simply not the case. Careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process of employers throughout the United States …”
Judge Titus also bashed the expert report prepared by Dr. Kevin R. Murphy, the EEOC’s statistical expert. He excluded it as evidence in the case on the grounds that Murphy used an incomplete and inaccurate database. The EEOC blamed Freeman for failing to produce sufficient information during discovery.
In the CRST case, Judge Reade castigated the EEOC for failing to properly identify potential class members. She expressed concern that the EEOC subjected CRST to a “moving target’ of prospective plaintiffs.”
Judge Reade dismissed more 67 potential class members from the lawsuit because the EEOC failed to “conciliate” or attempt to reach a settlement in those cases –even though the EEOC took the position that this was not required.
Whether or not these federal judges were fair to the EEOC, the dismissals are disconcerting. They represent a huge expenditure of scarce federal resources to combat a huge national problem – employment discrimination and harassment. The number of lawsuits filed by the EEOC has declined dramatically over the years, from a high of 465 in 1999 to 155 in 2012.
The EEOC last year approved a Strategic Enforcement Plan to promote more strategic use of agency resources.
The EEOC’s budget has generally increased in recent years – until last year. The EEOC’s budget was $341,900 million in 2009; $367,303 million in 2010; $385,303 in 2011; and $ 373,711 in 2012.