If you follow me on Twitter (@Eric_B_Meyer), you saw I broke the news last Friday that the Fourth Circuit Court of Appeals (here) joined the Sixth Circuit (here), in excluding expert testimony from the U.S. Equal Employment Opportunity Commission on how certain background checks may have a disparate impact on certain protected classes.
Yesterday, at the Ohio Employer’s Law Blog, Jon Hyman quoted the money shot from the recent Fourth Circuit opinion. Ultimately, the Fourth Circuit found the EEOC’s expert testimony to be “fatally flawed in multiple respects.”
While two circuit courts have thrown shade at the EEOC for its background check crusade — #THEREWILLBEHATERS — this does not mean that employers are in the clear. Consider first, that the EEOC’s Strategic Enforcement Plan lists Eliminating Barriers in Recruitment and Hiring as its number one priority. And the word I hear is that the EEOC, which, too runs background checks, is going to continue its war on criminal and credit checks until the Supreme Court weighs in.