In April 2014, the EEOC solidly lost in a unanimous decision from the U.S. Court of Appeals for the 6thCircuit in the appeal of EEOC v. Kaplan. In its the Court opened and closed its opinion this way:
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
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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. The district court did not abuse its discretion in excluding Murphy’s testimony.
The Court noted a number of failings by the EEOC’s expert “race rater”, Kevin Murphy, and why his testimony was excluded by the U.S. District Court for the Northern District of Ohio.
In determining whether an expert’s methodology is reliable, courts frequently consider the factors set forth by the Supreme Court in Daubert v Merrell Dow Pharmaceuticals, Inc. * * * Here, the district court considered every one of the Daubert factors—and found that Murphy’s methodology flunked them all.
Id., 5. The unanimous opinion was written by Judge Raymond M. Kethledge. On the panel were three judges: Judge Damon J. Keith, Judge Deborah L. Cook, and Judge Raymond M. Kethledge.
Eric J. Ellman is Senior Vice President for Public Policy and Legal Affairs at the Consumer Data Industry Association (CDIA) in Washington, DC. He also served for eight months as Interim President and CEO of the Association. More