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Bench Memos

NRO’s home for judicial news and analysis.

Our EEOC in Action



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In a unanimous ruling today (in Equal Employment Opportunity Comm’n v. Kaplan Higher Education Corp.), a Sixth Circuit panel rejected the EEOC’s claim that an educational institution’s use of credit checks for job applicants had a disparate impact in violation of federal law.

As the opinion notes, “the EEOC sued the [institution] for using the same type of background check that the EEOC uses,” and the institution used that check in order to help ensure that its employees complied with Department of Education regulations limiting access to students’ financial information.

On the merits of the disparate-impact claim, the opinion sums up the EEOC’s woeful failure to meet its burden:

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.

I’ll note that liberal icon Damon Keith was part of the unanimous panel; that’s further indication of how far afield the EEOC wandered.



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