August 13, 2013

EEOC suffers another smackdown by federal court

By Joshua P. Thompson Senior Attorney

Earlier this year, we discussed the pernicious use of “race-raters”  by the Equal Employment Opportunity Commission in EEOC v. Kaplan.  In that case, Kaplan began doing credit checks on applicants seeking positions of trust within the company, but refused to ask the applicants to indicate their race.  The EEOC found this race-neutral hiring practice completely unacceptable, and in order to show that Kaplan was discriminating, it hired “experts” to determine rejected-applicants’ race by looking at their DMV photos!  Then, based on these “race-raters'” subjective stereotypes of what black and Hispanic individuals “look like,” it reverse engineered the applicants and determined that Kaplan’s use of credit checks was discriminatory.  Fortunately, in a scathing opinion, the federal court rejected this pernicious stereotyping by our federal government, but as we explained at the time, the EEOC was undeterred, and was expected to appeal.  Apparently it will stop at nothing to be able to literally judge people by their skin color.

Well, not only has the EEOC appealed that case, but its use of shoddy scientific methods to “prove” that credit checks are discriminatory has been taken to new levels.  In EEOC v. Freeman, the EEOC is going after an employer that undertakes criminal background checks and credit checks as parts of its hiring process.  As the court noted at the outset, “conducting a criminal history or credit record background check on a potential employee is a rational and legitimate component of a reasonable hiring process. The reasons for conducting such checks are obvious.”  Not according to the EEOC, however, who tried to convince the court that the use of credit checks causes a disparate impact on the basis of race.  Once again, the federal court’s opinion does not hold back any punches.  The court described the EEOC’s expert reports as: “laughable”; “based on unreliable data”; “rife with analytical error”; “distorted”; “cherry-picked”; “worthless”; and “an egregious example of scientific dishonesty.”

No word yet on if the EEOC intends to appeal.

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