10 Apr 2014 Federal Race-Raters Dealt Major Court Defeat; Black Conservatives Helped Challenge Government Agency’s Race-Card Attack on Job Applicant Credit Checks

Hypocritical Federal Government Fought Company for Using the Same System Government Uses to Screen Hires

Washington, D.C. – In a case in which the Project 21 black leadership network supported the defendant with a legal brief, an appeals court just delivered a stinging rebuke to the federal Equal Employment Opportunity Commission for highly unprofessional methodology in attempting to prove racial disparities in a company’s job applicant credit checks.

“We decided to weigh in on this case because the EEOC’s effort to expand the use of disparate impact analysis went far beyond having any logical nexus with discrimination,” said Project 21 Co-Chairman Horace Cooper, a former professor of constitutional law and former congressional leadership staffer. “Instead, such analysis would simply serve as a burdensome and costly barrier to job creation. When we found out about the bizarre ‘race-rating’ technique, we felt even more obligated to share our views. Yesterday’s ruling vindicates our concerns.”

In the 6th Circuit Court of Appeals, a three-judge panel on April 9 unanimously ruled to exclude the findings of the government contractor General Information Services and the testimony of statistical analyst Kevin Murphy in the case of Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, et al. This affirms the decision of the U.S. District Court for the Northern District of Ohio and the summary judgment that ends the EEOC’s complaint against Kaplan.

In the opening paragraph of Judge Raymond Kethledge’s opinion, the jurist succinctly described the awkward nature of the EEOC’s complaint against Kaplan:

In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses… [T]he EEOC runs credit checks on applicants for 84 of the agency’s 97 positions… For that practice, the EEOC sued Kaplan.

The EEOC alleged that Kaplan, a higher education provider that had experienced problems of financial improprieties among its employees and later hired several third-party vendors to perform credit checks on senior executive and other applicants who would be involved in financial matters, illegally created a disparate impact that negatively affected minority applicants. At issue in the case was the EEOC’s methodology of allowing contracted “race raters” who largely relied upon photos provided by state agencies that issue driver’s licenses. The photos were used to determine an applicant’s race. Companies doing the credit checks for Kaplan did not record applicants’ race.

“It defies logic that a federal agency would seek to punish a private company for instituting a widely-accepted business practice — especially since this agency engages in the same practice,” said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel for the U.S. Senate Judiciary Committee. “This is an example of the lengths to which this presidency will go to advance their divisive agenda. It also highlights the importance of the courts as a rational body to counter these types of policies.”

The legal brief to which Project 21 was a party, written by the Pacific Legal Foundation and also joined by the Cato Institute, Center for Equal Opportunity and Competitive Enterprise Institute, argued, in part:

[The EEOC’s] use of race raters directly contradicts its own directives. When the government refuses to rely on self-identification, it must resort to using so-called racial identifiers, and thus stereotypes and sweeping assumptions. By opting not to ask the individuals to identify themselves, EEOC unilaterally made itself the definer and decider of race. It is impossible to define race in such a simplistic way, stamp an individual with a racial classification and simultaneously treat them with dignity…

Equality before the law means that government will not categorize people based on unscientific, stereotypical criteria, and it allows each person to define himself or herself, and thrive as an individual.

Judge Kethledge called the lower court’s ruling “a meticulously reasoned opinion,” and concluded:

The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, accepted only by the witness himself. The district court did not abuse its discretion in excluding Murphy’s testimony.

“Frankly, after seeing the district court’s ruling, I was surprised that the EEOC would even pursue such an appeal. The unanimous ruling by the 6th Circuit demonstrates just how untenable the EEOC’s position was,” added Project 21’s Cooper. “Telling employers who haven’t asked or in any way inquired about the racial status of applicants that they cannot adopt simple, widely-used preventative measures to ensure that potential employees won’t engage in wrongdoing is unfair. Using government contractors to scour applications and get third parties to provide photos to guess the applicants’ race to show how it might constitute racially-biased disparate impact is just plain bizarre.”

Project 21 is currently involved in the U.S. Supreme Court race preferences case of Schuette v. Coalition to Defend Affirmative Action as well as Fisher v. University of Texas at Austin on remand from the Supreme Court to the 5th Circuit Court of Appeals. In the previous U.S. Supreme Court term, it was involved in Fisher v. University of Texas at Austin and the voting rights case of Shelby County, Alabama v. Holder.

Project 21 legal experts and other members of the organization have discussed these cases and others in media interviews in venues that include MSNBC, the Fox News Channel, HBO, Glenn Beck’s Blaze TV, the nationally-syndicated Jim Bohannon radio show, Florida Public Radio, the Christian Science Monitor, Reuters and many others.

Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982.

Contributions to the National Center are tax-deductible and greatly appreciated.

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