George Leef asks Forbes readers to consider the latest incident that prompts him to question the value of administrative law.
Today’s reminder comes from the Equal Employment Opportunity Commission (EEOC), which has just suffered a severe rebuke from a federal court for another of its far-fetched “disparate impact” suits. Last March I discussed the trip to the woodshed the agency endured in the Kaplan case when the Sixth Circuit slammed its “expert,” whose purported proof of statistical discrimination was seen to be laughable.
The agency has just received similar treatment from the Fourth Circuit in EEOC v. Freeman – exactly the same sort of disparate impact case where a company used background checks to help screen out workers who might not be trustworthy, particularly in jobs involving the handling of money.
The EEOC’s view is that employers are not allowed to have a preference for workers who haven’t done things to bring suspicion upon themselves. Because the background checks done in Kaplan and Freeman adversely affected a higher proportion of minority workers than others, the EEOC claims that the firms were guilty of employment discrimination under the Civil Rights Act of 1964.
In both cases, the EEOC relied on analysis done by psychologist Kevin Murphy and in both the courts ridiculed that reliance. In Freeman, the majority pointed to his “pervasive errors and utterly unreliable analysis.” In his concurring opinion, Judge Agee observed that Murphy’s “problems would be trouble enough standing alone, but they are even more disquieting in the context of what appears to be a pattern of suspect work.” Judge Agee seems to suggest that the EEOC looks for “experts” who will say what it wants to hear, giving a veneer of justification for groundless litigation. Judges have called out similar behavior by “expert witnesses” for plaintiffs’ lawyers in tort litigation.
All of that, however, is beside the fundamental point: The Civil Rights Act does not say that companies violate the law when choices they make have more impact on some groups than others. The law was clearly aimed at instances where individuals were turned away from jobs simply on account of race or other immutable characteristics. Under the law, the EEOC’s intended role was to sue on behalf of individuals who had been refused work on those grounds.
That would have left relatively little for the agency to do. Zealous staffers wanted to impose their utopian vision of perfect fairness on the labor market and thus developed the sweeping concept of “disparate impact” in the late 60s. Even when a company applied a neutral employment qualification to all job seekers, declared the EEOC, it was guilty of discrimination if that adversely affected a “protected” group more than others. This novel and legally groundless approach gave rise to statistical analysis to “prove” discrimination – examine all the hires and non-hires from enough angles and eventually you’re almost certain to find some gap between the actual and the EEOC’s theoretical ideal.
