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EEOC Gets Benchslapped by Sixth in Short, Hilarious Dismissal

By William Peacock, Esq. | Last updated on

It is a rare benchslap that lasts seven pages. It's not uncommon to see a paragraph or two that mocks a party's unreasonable position. And we've seen Judge Kethledge mock parties' unreasonable stances before, but a full seven pages? Well done, Equal Employment Opportunity Commission -- you've surpassed the "golden sombrero" to reach a whole new level of ineptitude.

What caused the seven page rant/affirmed dismissal? Only a hypocritical lawsuit supported by a comical attempt at producing scientific methodology in support a frivolous case of alleged disparate impact discrimination.

Kaplan Uses Credit Checks When Hiring

Kaplan Higher Education had a problem with rogue employees stealing from students and/or self-dealing with relatives on important company contracts. Their solution? Run credit checks on potential employees to screen out deadbeats and others who may by tempted by financial pressures.

Maybe this is a good strategy, or maybe it's unfair. The EEOC, however, called it racist, arguing that the process had a disparate impact on African American job candidates.

Okay, that theory worked with background checks, so it's not too far-fetched. Except this:

In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses. The EEOC's personnel handbook recites that "[o]verdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations." Because of that concern, the EEOC runs credit checks on applicants for 84 of the agency's 97 positions. The defendants (collectively, "Kaplan") have the same concern; and thus Kaplan runs credit checks on applicants for positions that provide access to students' financial-loan information, among other positions. For that practice, the EEOC sued Kaplan.

That's how the court's opinion began. It only got worse from there.

Race Raters!

In order to prove their disparate impact theory, the EEOC presented the testimony of "expert" Kevin Murphy. Murphy's methodology was ... well, here's how the court classified it:

The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.

What was that methodology? He pulled the credit reports provided by one of many vendors used by Kaplan, then, since the reports lacked racial data, he subpoenaed the DMV. Eleven states provided race data. Thirty-six states and the District of Columbia provided color photographs.

From there, his crack team of "race raters" tried to guess the race of people on the basis of these photos. For 11.7 percent of the photos, the raters could not come to a four-out-of-five raters consensus.

Unfortunately, the team also forgot to remove the individuals' names, so there was an additional possible bias in the experiment.

Unrepresentative Sampling

It gets worse. 23.8 percent of his sample (1,090) of that single vendor's pool (4,670 applicants), were rejected based on credit history, compared to 13.3 percent of the vendor's pool overall. In other words, his sample of a sample was flawed, yet the EEOC tried to argue that it was representative of all vendors and Kaplan's entire hiring pool.

Daubert Debacle

Unsurprisingly, the district court held that this novel "methodology" failed every single Daubert factor (testability, known rate of error, proven reliability via peer review, standards controlling operation, and general acceptance in the scientific community). It also excluded Murphy's expertise due to the bad sampling, noting that "[t]here [was] no indication" that his sample was in any "way 'representative' of the applicant pool as a whole." The Sixth Circuit agreed enthusiastically.

There was more to the long benchslapping, but much like the Sixth Circuit, "[w]e need not belabor the issue further." You get the point.

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