American Elephants


How the Bureaucracy Proves Racial Bias by The Elephant's Child

One of the big stories about the Obama administration is how often federal courts are overturning executive overreach. But last week’s slapdown of the Equal Employment Opportunity Commission by the Sixth Circuit Court of Appeals was something special.

The EEOC had sued Kaplan, the for-profit education company, for  using the same kind of background check that the EEOC itself uses. The EEOC has made a practice of suing private companies because it claims that credit and criminal background checks discriminate against minorities. In 2012 the agency issued “guidance” to get companies to take special care before using checks for criminal records, but stopped short for checking credit records.

The EEOC sued Kaplan for using credit checks, which the EEOC said had no business necessity and resulted in a “disparate impact” on blacks. A federal judge rejected the case, but the EEOC was so convinced of their virtue that it appealed. Mistake.

Judge Kethledge eviscerated the EEOC, writing that Kaplan had good reason to conduct credit checks on “applicants for positions that provide access to students’ financial-loan information because employees had “stolen payments” and “engaged in self-dealing.” As far as disparate racial impact was concerned, the Judge noted that the credit-check process is racially blind, the company does not report the applicant’s race with her other information.

The EEOC’s methodology left something to be desired. Raters were to look at drivers’ license pictures of applicants and if 4 out of 5 raters agreed on the race of the person, the applicant was classified by that race — and that was how you determined discrimination. As Judge Kethledge put it in closing”

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.

And thus the bureaucracy grinds on, altering and illuminating the affairs of man. Isn’t it somewhat racist to assume that blacks would have more trouble with credit and criminal background checks, and thus checking such records is racist?




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