Partner Todd Lebowitz authored a March 13, 2015, blog post for the Congress Blog on TheHill.com titled “Courts remind EEOC again: Background checks don’t equal racism.” Lebowitz analyzes the recent Fourth Circuit Court of Appeals ruling in EEOC v. Freeman, in which the court held that the Equal Employment Opportunity Commission’s statistical case against one company’s use of background checks in hiring was “rife with analytical errors,” “completely unreliable,” and contained a “mind-boggling number of errors and unexplained discrepancies.” He notes that “court after court has panned the EEOC’s approach” of using questionable statistics when bringing a charge of racial discrimination against companies using background checks to vet job candidates.
Lebowitz acknowledges the socially worthwhile goal of helping rehabilitated ex-offenders to re-enter the workforce, but argues that the EEOC's coercive approach is the wrong model for engineering social change. He instead argues in favor of a state-based model like that adopted in Georgia, which provides ex-offenders an opportunity to earn a rehabilitation certificate and provides employers who hire these individuals immunity from negligent hire claims.
Lebowitz concludes: “It remains to be seen whether the Fourth Circuit’s recent decision will prompt the EEOC to change its much-maligned approach to background checks.”
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