Sixth Circuit Affirms Dismissal of EEOC’s Background Check Case against Employer

~April 2014

By Carrie Zochert, Berens & Miller, P.A., Minneapolis, MN

In EEOC v. Kaplan, the Sixth Circuit affirmed the dismissal of the EEOC’s case against an employer for alleged discriminatory use of background checks in the hiring process.

The appellate court quickly set the tone in its opening paragraph, which began, “[i]n this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses.” The EEOC alleged that the employer’s use of credit checks had a disparate impact on non-white applicants in violation of Title VII. Proof of disparate impact is usually in the form of statistical proof put forth via expert testimony.

The EEOC’s expert used a process called “race rating,” which allegedly identified the race of each applicant by viewing his or her driver’s license photos. The EEOC had obtained the photos by subpoenaing departments of motor vehicles.

The Sixth Circuit characterized the EEOC’s methodology as “homemade,” unreliable, and inadmissible, and emphasized that the “EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate ‘only if an employee refuses to self identify.'”

The court’s opinion can be found here.

For questions about using background checks in hiring or promoting applicants, please call one of the employment law attorneys at Berens & Miller: Carrie L. Zochert or Barbara Berens.