Equal Employment Opportunity Commission Accused of Using Racial Stereotypes

Groups allege EEOC using racial stereotypes in discrimination lawsuit

• October 22, 2013 10:00 am


Several groups have accused the Equal Employment Opportunity Commission of using racial stereotypes as the foundation for a lawsuit charging an education company with discriminating against minorities in its hiring process, according to a legal brief in the case.

The EEOC alleges in Equal Employment Opportunity Commission v. Kaplan Higher Education Corp., et. al., that Kaplan’s screening of applicants’ credit histories has a "disparate impact" on minorities. A U.S. district court dismissed the case in January, prompting the EEOC to appeal to the 6th Circuit Court of Appeals.

Horace Cooper, co-chairman of the national advisory board for Project 21, a group of black conservatives that co-authored the brief, said in an interview that the EEOC consulted "race raters" to ascertain the race of Kaplan’s applicants using DMV photos and their names. The EEOC is the federal agency responsible for enforcing laws against employer discrimination based on race, sex, and other factors.

"If you want to talk about bigotry, you are saying that I can just look at a name and know the race of that person?" Cooper said. "You want to talk about bigotry? That’s the bigotry."

The EEOC found that, based on their assessments, about 6 to 9 percent of black applicants did not receive a follow-up interview compared to about 2 to 3 percent of whites, Cooper said. That disparity formed the basis for the EEOC’s suit.

"That is very much a stretch," he said. "Such a small difference isn’t all that meaningful."

Kaplan has said it typically conducts background checks on all prospective employees to ensure that staff handling sensitive data like financial aid are properly screened.

The company has come under intense scrutiny in recent years after congressional investigations and  lawsuits filed by whistleblowers yielded evidence that its staff tried to entice potential enrollees to attend its colleges with unrealistic salary promises. There was also evidence that Kaplan inflated students’ grades and manipulated placement data to continue receiving financial aid.

Kaplan could not be reached for comment.

Cooper said Kaplan would be legally liable for financial improprieties committed by its staff.

"Why would anyone want to hire folks who have had substantial problems managing finances to be responsible for accessing financial data from other parties?" he said. "That’s a legitimate concern."

The EEOC itself requires credit checks for 84 of 97 positions at the agency, based on the notion that "overdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations," according to the district court’s opinion.

An EEOC spokesperson did not comment on the case but referred the Washington Free Beacon to the agency’s legal brief for the appeal.

The agency hired psychologist and statistician Kevin Murphy to lead a team of consultants to examine the DMV photos.

Murphy assembled a team of five "race raters" to review the photos of applicants for the EEOC and independently determine whether the individuals were "African-American," "Asian," "Hispanic," "White," or "other," according to court documents. Out of 891 photos, four members of the team were unable to achieve a consensus on almost 12 percent of them in an initial report. A group of three "race raters," including Murphy, reached unanimous consensus on 15 additional photos in a separate analysis.

The group members had advanced degrees in cultural anthropology, education, human development, psychology, and economics.

Murphy said the DMV provided photographic and race identifications for 47 of the individuals. There was more than 95 percent agreement between the team’s conclusions and the DMV racial classifications.

When reached by the Free Beacon, Murphy declined to comment due to the case’s pending appeal.

The EEOC’s brief responded to Kaplan’s argument that, rather than analyzing the DMV photos, the agency should have asked applicants about their race via mail-outs or telephone surveys, in-person visits, or subpoenas.

"The impracticability of Kaplan’s approach is obvious, but even if it were possible to gather race identification information using such methods that does not mean Murphy’s reliance on DMV data and photos is unreliable," the brief said.

The EEOC also criticized Kaplan for not retaining racial information about its applicants and argued that other employers could employ a similar tactic to avoid discrimination charges.

However, the district court raised a number of questions about the work of the "race raters" in its ruling.

The court said "not one of [the race raters] has experience in identifying race via visual means" and noted that the EEOC referred to the additional cross-checking of the team’s analysis with DMV data as an "anecdotal corroboration" rather than a scientific "sample."

The EEOC itself discourages employers from visually identifying an individual by race, the court said.

"Regardless of the reason supporting the pronouncement, it is clear that the EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is a method accepted by the scientific community as a means of determining race," the court’s opinion said.

The district court ultimately decided to exclude Murphy’s testimony in its adjudication of the case.

Project 21 said in its brief for the appeal, filed last week, that the EEOC undermined equal protection for the applicants by using the "race raters." The group was joined in the brief by the Pacific Legal Foundation, the Cato Institute, the Center for Equal Opportunity, and the Competitive Enterprise Institute.

"[The EEOC’s] use of race raters directly contradicts its own directives," the brief said. "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," the brief continued. "It is impossible to define race in such a simplistic way, stamp an individual with a racial classification, and simultaneously treat them with dignity."

Cooper said the Kaplan case is just the latest instance of a more proactive strategy by the EEOC to suppress what it views as employer discrimination.

"Under the Obama administration, there’s been an aggressive push to use the threat and actual carrying out of litigation to send out a signal that close calls are no longer going to be worked out in collaboration," he said. "We are actually going to be charging you."

A U.S. district court judge recently dismissed another case involving the EEOC and Bass Pro Shops, which the agency claimed was hiring too few minorities. Bass Pro said the EEOC was trying to browbeat it into a settlement, while the agency said its pre-suit procedures were not subject to judicial review due to separation of powers.

The EEOC told the New York Times in 2010 that it only pursues lawsuits in discrimination cases if it believes serious abuses have occurred. A spokeswoman said the agency only filed 250 lawsuits in 2010 out of 99,000 charges filed. The Kaplan case was only the third time it sued over what it believed was a discriminatory use of credit reports in the hiring process, she added.

Cooper said he fears the EEOC’s decision to use consultants and focus on matters like the Kaplan case might be preventing it from cracking down on other cases of discrimination.

"It’s weird. It’s not scientific. And we believe it’s causing the EEOC to not look at real cases where employees can say, ‘Hey, I applied for this job. They didn’t hire me. I believe I’ve been discriminated against,’" he said.

Arguments have not yet been scheduled for the case’s appeal.