Friday, May 31, 2013

"Race Raters" Inadmissible - COTW #145

This Case of the Week goes back a few months, but it's an interesting issue so I decided to drop it in here.

The EEOC filed a disparate impact lawsuit against Kaplan Higher Learning Education Corp. for its use of credit reports in background checks. To establish a disparate impact based on race, the EEOC proffered statistics - but they didn't have the actual race of each applicant. Instead, the EEOC relied on "race raters" to identify the race of each individual using his or her driver's license photos:
In order to determine the race of a particular applicant, the EEOC subpoenaed records from the Departments of Motor Vehicles (“DMVs”) from 38 states and the District of Columbia. Fourteen states and the District of Columbia provided records that identified an applicant's race. The remaining 24 states provided copies of the driver's license photos pertaining to the applicants. In order to determine the race of applicants from these states, Dr. Murphy assembled a team of five “race raters,” who were asked to review each photograph and determine whether the individual is “African–American,” “Asian,” “Hispanic,” “White,” or “Other.” Individuals considered “multi-racial” were adjudged “Other.” Dr. Murphy required that four of the five “race raters” agree (80%) in order to consider that applicant's race. In all, the “race raters” were shown 891 photographs. In 11.7% of the photographs, the “race raters” were unable to achieve an 80% consensus with regard to the applicant's race.
Equal Opportunity Employment Comm'n v. Kaplan Higher Learning Edu. Corp., 1:10 CV 2882, 2013 WL 322116 (N.D. Ohio Jan. 28, 2013) reconsideration denied, 1:10 CV 2882, 2013 WL 1891365 (N.D. Ohio May 6, 2013).

The Court granted the defendant's motions to exclude the evidence and enter summary judgment.

An interesting sidenote: discovery revealed that the EEOC itself used credit checks for 84 of its 97 positions. Per the EEOC handbook, the EEOC uses credit checks because "overdue just debts increase temptation to commit illegal or unethical acts as a means of gaining funds to meet financial obligations."

HT: My McQuaide Blasko colleague, Janine Gismondi.