Better in their words…

At least one body of the US Govt is paying attention…
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A big story of President Obama’s second term is how federal courts are overturning executive abuses. But sometimes the prosecution is so outrageous, and the legal smackdown so sublime, that the episode deserves special recognition.

Such is the case with last week’s hilariously caustic rebuke of the Equal Employment Opportunity Commission by the Sixth Circuit Court of Appeals. The EEOC had sued Kaplan, the for-profit education company, for using “the same type of background check that the EEOC itself uses,” as Judge Raymond Kethledge cheekily put it in the first sentence of his ruling in EEOC v. Kaplan.

Despite its own practices, the Obama EEOC has made a cause 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 think twice before using criminal checks but stopped short of doing the same for credit checks.

That didn’t stop it from suing Kaplan for using credit checks, which the EEOC claimed had no business necessity and resulted in a “disparate impact” on blacks. A federal judge tossed the case, but the EEOC is so convinced of its virtue that it appealed. Bad idea.

Judge Kethledge eviscerated the EEOC like a first-day law student, 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 for proving disparate racial impact, Judge Kethledge noted that “the credit-check process is racially blind; the [credit-check] vendor does not report the applicant’s race with her other information.” But the EEOC had relied entirely on Kevin Murphy, a consultant who assembled a team of five “race raters” to look at the drivers’ licenses of a sample of applicants and then classify them by race. If four of the five agreed on the race of the individual, the applicant was classified by that race.

The district court had found that Mr. Murphy’s methodology lacked, to put it mildly, “standards controlling the technique’s operation.” The EEOC “responds that the relevant standard was Murphy’s requirement that four of five raters agree on an applicant’s race,” wrote Judge Kethledge. “But that response overlooks Murphy’s own concession that the raters themselves had no particular standard in classifying each applicant; instead they just eyeballed the DMV photos.”

Thus do President Obama’s enforcement police attempt to prove discrimination—by pointing at photo IDs and guessing. 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.”

The unanimous opinion was joined by Damon Keith, one of the most liberal judges on the entire federal bench. If government officials were accountable, EEOC General Counsel P. David Lopez would be fired for losing in such humiliating fashion. But instead he wrote us in an email via a spokeswoman that while he is “disappointed” by the decision, it is “an evidentiary ruling that does not go to the merits of the underlying discrimination allegation made by the EEOC.” He must be a glutton for legal punishment.

Opinion of the Year – WSJ.com.