I have written often about the left’s war on standards, an attempt to bulldoze standards of conduct and achievement that stand in the way of equal distribution of society’s benefits and prizes to Blacks. One major front in that war is the federal government’s attack, via EEOC lawsuits, on employers that use the background checks to screen applicants for employment. The government takes particular exception to the use of criminal history and credit checks because these devices tend to exclude African-American job applicants to a statistically disproportionate degree.
But the federal government itself uses criminal and credit history information in selecting its employees, as any non-brain-dead employer would want to do. Evidently, the federal government as employer remains sufficiently non-ideological to use sensible means of screening out undesirable employees for its workforce. As a judge of other employers, not so much.
Yesterday, the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal of a challenge by the EEOC to the use of credit checks by Kaplan Higher Education Corporation. The very first sentence of the opinion, by Judge Ray Kethledge, calls out the EEOC for its hypocricy:
In this case, the EEOC sued the defendant for using the same type of background check that the EEOC itself uses.
Readers will observe, by the way, that the same kind of hypocrisy exists when it comes to “pay equity.” President Obama wants to build a religion — or at least an off-year election campaign — around the view that women suffer from rampant pay inequity. However, as has been widely noted, women at the Obama White House are victims of “pay discrimination” as judged by the absurd test Obama uses to demonstrate the alleged “war on women.” When called on this, Jay Carney invoked the same defense that applies to other employers and the economy as a whole — he controlled for the relevant variables.
The Sixth Circuit’s opinion in EEOC v. Kaplan doesn’t turn on the merits of using credit checks. The use of such devices becomes legally problematic (if at all) only upon a showing that the device disproportionately excludes a “protected group,” in this case African-Americans.
The district court tossed the case against Kaplan because EEOC failed to make this threshold showing. This was the decision the Sixth Circuit affirmed.
The way the EEOC attempted to prove disparate impact is quite revealing and rather disconcerting. To evaluate the racial impact of a hiring policy, one must, of course, know the race of applicants. In this case, Kaplan did not record this information. Thus, the EEOC’s “expert” had to eyeball copies of applicant driver’s licenses and, in effect, guess the race. (The expert also had the names of applicants; though the EEOC insisted they weren’t used to determine race, the Sixth Circuit seemed skeptical of that claim).
To guess the race of applicants from the photos on their licenses, the expert used a process called “race rating.” He assembled a team of five race raters each of whom has experience in what the EEOC calls “multicultural, multiracial, treatment outcome research.”
Am I the only one frightened by the notion that there is a corps of “race raters” out there engaging in “multicultural, multiracial, treatment outcome research”? I don’t know what that research involves and, according to the Sixth Circuit, the EEOC never defined it. But I’m sure I don’t like it.
As Chief Justice Roberts said, “It is a sordid business, this divvying us up by race.”
It can also be an unreliable business. The Sixth Circuit agreed with the district court that the “expert” evidence used by the EEOC doesn’t meet the test for reliability established by the Federal Rules of Evidence. The court concluded:
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. The district court did not abuse its discretion in excluding [the expert's] testimony.
The Sixth Circuit’s decision was unanimous. This struck me as interesting because the panel included Senior Judge Damon Keith, a legendary civil rights lawyer whose career extends back to the 1950s (and who, by the way, befriended the young, troubled Willie Horton who went on to become a Detroit Tigers star and a Motor City icon). Judge Keith did not write separately.
It was a good day for standards, including evidentiary ones.