Court Affirms Judgment in EEOC Background Check Case

Written By Thomas Ahearn

EEOCOn April 9, 2014, the Sixth Circuit Court of Appeals affirmed summary judgment in the case of Equal Employment Opportunity Commission (EEOC) v. Kaplan Higher Education Corporation, et al. The EEOC brought suit against Kaplan claiming that its practice of using credit checks during the hiring process had a disparate impact on African Americans but the Sixth Circuit found the EEOC used flawed methodology when trying to prove credit checks unfairly impacted Black applicants. The ruling is available at http://www.ca6.uscourts.gov/opinions.pdf/14a0071p-06.pdf.

Specifically, the EEOC – the federal agency charged with enforcing employment discrimination laws – alleged Kaplan’s use of credit checks screened out more African-American applicants than white applicants and created a disparate impact in violation of Title VII of the federal Civil Rights Act. While proof of disparate impact is usually statistical proof in the form of expert testimony, the court excluded testimony from the EEOC’s expert witness, who holds a doctorate in industrial and organizational psychology, on grounds that it was unreliable for two reasons:

  • First, the EEOC presented “no evidence” that the expert’s methodology satisfied any of the factors that courts typically consider in determining reliability under Federal Rule of Evidence 702; and
  • Second, as the expert himself admitted, his sample was not representative of Kaplan’s applicant pool as a whole.

The opening paragraph in the 6th Circuit’s decision foreshadowed the position the court would take:

  • 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.

As reported previously on the ESR News blog in January 2013, the U.S. District Court for the Northern District of Ohio granted summary judgment in favor of Kaplan in a nationwide hiring discrimination lawsuit filed by the EEOC over Kaplan’s use of credit checks as part of its hiring process after finding the EEOC’s statistical evidence of disparate impact was not reliable and not representative of Kaplan’s applicant pool. The original summary judgment in the case of EEOC vs. Kaplan is available at http://www.esrcheck.com/file/EEOCvsKaplan_SummaryJudgment.pdf.

“Although this is a win for this particular employer, it would be big mistake for employers to assume that that need to pay attention to Title VII is in anyway diminished,” says Attorney Les Rosen, founder and CEO of Employment Screening Resources® (ESR), a nationwide background check firm accredited by the National Association of Professional Background Screeners (NAPBS®). “It remains a critical issue, and this is just one court decision in one particular case in an area of law that is continually evolving.”

EEOC & Background Checks

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