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EEOC Learns the Hard Way That “Do As I Say, Not As I Do” Doesn’t Fly

Posted by Frank Steinberg | Apr 17, 2014 | 0 Comments

As a lawyer, you know that you're about to have a bad day when an appellate court opinion,in discussing your client's position, starts this way:

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. 

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. 

In other words, the EEOC's position on Kaplan's use of credit checks, was “do as I say, not as I do.”  The case is EEOC v. Kaplan, and the 6th Circuit Court of Appeals wasn't buying it.  A little more discussion of the EEOC's purportedly “expert” testimony offered to support its position, and things got worse for the government.

We need not belabor the issue further. 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 Murphy's testimony.

Let's translate that into plainer English: The EEOC sued Kaplan on the basis of the made-up, scientifically unsupportable opinion, grounded upon unreliable data, of a purported “expert” who isn't an expert at all.  

The EEOC has an important statutory purpose to fulfill, which, like all governmental authority, must be exercised honestly and with a constant awareness of the limits of its own power.  In this case a combination of institutional hypocrisy and bad science took the EEOC way over the line. Thank goodness the 6th Circuit hauled them back.  

We should be thankful, too, that the EEOC in this case targeted a company like Kaplan, which has the resources to defend itself against such governmental overreach.  The outcome could have been different, and the injustice could have gone unremarked and unremedied, if the EEOC had gone after smaller prey without the resources to defend itself.  Such is the danger of governmental power that either does not understand or respect its own limits. We would hope that someone on Kaplan's side is already drafting a motion for sanctions, for the case seems to cry out for that.

About the Author

Frank Steinberg

Frank is the founder and principal of Steinberg Law, LLC. A Jersey boy born and bred, he focuses on employment litigation and counseling, business litigation,  and aviation law. Following law school and a clerkship in the federal district court Frank spent his early career with large litigation ...

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