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 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:

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

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.

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:

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.

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.

  • EEOC v. Kaplan (Sixth Circuit Court of Appeals)
  • Judge Benchslapped: Failed to Recuse Juror in Child Porn Case (FindLaw’s Sixth Circuit Blog)
  • Was Boyce Martin a Victim of 6th Cir. Judicial Infighting? (FindLaw’s Sixth Circuit Blog)

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