The EEOC learns what it's like to be the statue and not the pigeon.
The EEOC can't seem to catch a break these days.
After a string of recent cases in which the agency has been forced to pay employer attorneys' fees for bringing frivolous claims, the most recent zinger came from the Sixth Circuit last week in EEOC v. Kaplan Higher Education Association, Case No. 13-3408 (April 9, 2014). The EEOC sued Kaplan on a pattern or practice theory claiming that its use of preemployment credit checks disparately impacted minorities. The agency attempted to support its claim by relying on the purported expert testimony of Superstar Kevin "I Know It When I See It" Murphy.
The illustrious Mr. Murphy claims to have invented an "expert" method of identifying a person's race without actually speaking to them or reviewing any of their personal information, which is impressively titled "Multicultural, Multiracial, Treatment Outcome Research." Of course, that label loses some luster with the revelation that it consists of a five-member team of so-called "race raters" who try to guess a person's race by looking at his or her driver's license photo. Moreover, lending credence to the observation that an expert is simply someone who has made multiple mistakes in the same field, Superstar Kevin Murphy's "race raters" were frequently unable to agree upon a person's race, and were frequently wrong when they did agree. In addition, as he acknowledged in his expert report, the Superstar does not trouble himself with silly little things like valid statistical samples. Based on these flaws (and others), the district court excluded the Superstar's report ( which we wrote about here).
The EEOC appealed the district court's decision to the Sixth Circuit, arguing that the court had erred by "making the perfect the enemy of the good." (That's an actual quote, not just another snide remark.) The Sixth Circuit was not impressed. The court began its unanimous opinion—issued only 3 weeks after oral argument—by noting that the EEOC was suing Kaplan for using the same background check process that the EEOC uses in its own hiring process. Seriously, you can't make this stuff up. (A copy of the Sixth Circuit's opinion can be found here.)
As if that wasn't bad enough, it went downhill for the EEOC from there. In fact, while tersely explaining why The Superstar Kevin Murphy Method fails every step of the legal test for determining the validity of expert opinions (which we lawyers refer to as the "Daubert test" so that we sound smart), the court didn't stop there. It also pointed out that "the record contain[ed] no indication that Murphy has any particular expertise in constructing methodologies to identify race by visual means." The court concluded its opinion with a devastating sum-up of the EEOC's position:
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 district court did not abuse its discretion in excluding Murphy's testimony.
Ouch.
While there's a certain guilty pleasure in seeing the government taking it on the chin every now and then, employers should be encouraged by the Sixth Circuit's Kaplan opinion for at least two additional reasons. First, it provides solid authority for the proposition that expert testimony should be subjected to the same scrutiny regardless of whether a case is in a pre-class certification posture. Second, it will be a valuable precedent for employers in establishing that self-declared experts applying pseudo-scientific principles cannot withstand such scrutiny simply by claiming to have serve some vague objective of "social justice."
The Bottom Line: The Sixth Circuit's Kaplan opinion continues the trend toward more careful consideration of class-based litigation.
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