EEOC expert made an 'alarming number of errors,' 4th Circuit says in background-check case

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Updated: An expert witness for the Equal Employment Opportunity Commission made “an alarming number of errors” in an analysis of a discrimination claim, according to a federal appeals court opinion that upheld dismissal of an EEOC lawsuit.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals ruled (PDF) on Friday in an EEOC suit targeting criminal background checks, the Litigation Daily reports. The appeals court said a federal trial judge did not abuse his discretion when he refused to admit the report by expert witness Kevin Murphy, an industrial and organizational psychologist.

Murphy’s report had concluded that background checks by an event coordinating company, Freeman Co., disproportionately screened out black job applicants. U.S. District Judge Roger Titus of Maryland had found (PDF) that the expert “cherry-picked” data and made a “mind-boggling number of errors,” according to a concurrence by another judge on the 4th Circuit panel, Judge G. Steven Agee.

Agee said the EEOC also sought to use Murphy’s testimony in a case challenging job credit checks by Kaplan Inc., but it was excluded by a federal judge in an opinion upheld by the Cincinnati-based 6th U.S. Circuit Court of Appeals.

“It troubles me that the commission continues to proffer expert testimony from a witness whose work has been roundly rejected in our sister circuits,” Agee wrote.

An EEOC spokeswoman told the Am Law Litigation Daily that the agency was disappointed in the ruling.

Murphy told the ABA Journal in an email that Freeman had responded to discovery requests with “many separate data files that varied considerably in their organization and content and in the identifying information they included. The team I led was not able, to the court’s satisfaction, to reassemble these disparate pieces into a single file that would allow us to correctly identify the race, gender and employment outcomes of employees, and the statistics in my report were not accepted as reliable by the court.”

Freeman did not produce “an integrated data file,” Murphy said, and his team was “simply not able to reconstruct the sort of files most organizations would maintain” from the information the company did provide.

“As the team leader, it was my responsibility to determine how to reassemble the data we received into a usable form and provide reliable analyses, and my team and I did not succeed in this effort,” Murphy said.

Updated at 11:55 a.m. to include comment by Murphy.

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