I can’t help but think this latest slap on the wrist of the Equal Employment Opportunity Commission (as documented by HR Morning) will only embolden the agency.
That has been the sentiment after past EEOC court defeats, including this one I blogged about several months back.
In this latest case, a federal appeals court upheld the dismissal of a lawsuit filed by the EEOC against Kaplan Higher Education Corp., claiming the company improperly used credit histories to screen job applicants.
The agency claimed Kaplan discriminated against black candidates applying to senior-executive, accounting and other financially sensitive positions. The EEOC, meanwhile, hired a third party to prove the credit checks had a disparate impact on black applicants, but the court found the third party’s research process — which included examining driver’s licenses to determine race, a technique it calls “race rating” — was flawed and unreliable.
What’s more, the court found, the EEOC was making charges about a background-check technique it employs. And that’s not all the problems found by the court.
As quoted from the ruling, care of HR Morning:
In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.
… 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.”
This piece from Forbes offers additional details and perspective about the case.
From my limited perspective, I’m starting to see enough of these failed EEOC prosecutions to think the agency might have better luck returning to the old days of helping employers comply rather than looking for ways — even paying third parties to find ways — to nail them.