Hunton Employment & Labor Perspectives

On February 20, 2015, a unanimous panel of the Fourth Circuit affirmed the exclusion of expert testimony by EEOC expert Kevin Murphy and the grant of summary judgment against the EEOC in its suit challenging Freeman’s use of credit and criminal background checks in the hiring process.  Although the Fourth Circuit’s decision expressed no opinion on the merits of the EEOC’s claim, the court found summary judgment was justified because the “sheer number of mistakes and omissions” in Murphy’s analysis rendered it unreliable.  While the court’s published opinion cited the “alarming number” of “mind-boggling errors” by Murphy, it was a concurring opinion by Judge Agee (which is actually longer than the unanimous decision of the court) that more thoroughly and severely criticized Murphy’s expert testimony and the EEOC’s “disappointing litigation conduct.”  According to Judge Agee, Murphy’s work was “riddled with fundamental errors, mistakes, and misrepresentations,” but even more disquieting was what appears to be a “pattern of suspect work from Murphy,” and the EEOC’s continued championing of Murphy “[d]espite [his] record of slipshod work, faulty analysis, and statistical sleight of hand.”  Judge Agee concluded:

The EEOC wields significant power…  The EEOC must be constantly vigilant that it does not abuse the power conferred upon it by Congress.  … The Commission’s conduct in this case suggests that its exercise of vigilance has been lacking.  It would serve the agency well in the future to reconsider how it might better discharge the responsibilities delegated to it or face the consequences for failing to do so.

Slip Op. at 21-23 (Agee, J., concurring)