The EEOC has been at it again, flaunting the law, and has gotten its hand slapped. The 6th Circuit Court of Appeals, in a unanimous opinion, stated that “In this case the EEOC sued the defendant for using the same type of background check that the EEOC itself uses.”

Amazing, right? Nothing that comes out of Washington surprises me anymore! In the case in question, Kaplan Educational Services screened its job applicants, including the use of credit checks, because in response to instances of employee theft. The EEOC brought suit, claiming that the credit checks had a disparate impact on minorities.

What the EEOC did at trial was quite interesting. It hired an expert witness, a psychologist, to perform statistical studies using Kaplan’s applicant data. The expert filed multiple reports with the judge even after the judge told him to stop, most of which are late. (Note: in the federal system, judges have literally zero tolerance for missed deadlines and are not terribly impressed with “experts”.) The judge deemed the reports unreliable under the Federal Rules of Evidence and threw out the EEOC’s case.

On appeal, the 6th Circuit affirmed noting that the court could neither test the psychologist’s technique nor evaluate the test’s error rate. The EEOC countered that an expert’s theory did not have to be subject to peer review and that the burden should be shifted to the employer. The court’s response was: “The law says to the contrary”. Hooray!!

The court pointedly stated that “the EEOC brought this case on the basis of 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 itself.”

If that isn’t throwing down the gauntlet, I don’t know what is. The truth is that the executive branch, whether at the federal or state level, frequently engages in rank hypocrisy and, but for the judicial branch, would be free to do so. In particular, federal judges, who have lifetime tenure, will not tolerate this kind of hubris which is what makes litigating in the federal system, as opposed to the state courts and administrative tribunals, much fairer for employers.

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Contact Jennifer at Jennifer@Kirschenbaumesq.com or at (516) 747-6700 x. 302.