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Judge tosses discrimination suit against Kaplan

EEOC failed to prove disparate impact in case

A federal judge has tossed a lawsuit against online educator Kaplan Higher Education that accused the company of discriminating against black job applicants. The suit claimed that Kaplan’s practice of doing credit checks resulted in a disparate impact on black people who applied for jobs with the company.

The Equal Employment Opportunity Commission (EEOC) filed suit against Kaplan in 2010 on behalf of the applicants, claiming the company’s credit checks on job applicants was a violation of Title VII of the Civil Rights Act. The suit said the practice created an "unlawful discriminatory impact because of race and is neither job-related nor justified by business necessity."

But Ohio Judge Patricia Gaughan dismissed the case yesterday, saying the EEOC failed to prove a disparate impact on the black applicants—a requirement in an employment discrimination case.

To prove Kaplan’s hiring practices were discriminatory against black applicants, the EEOC first had to prove the race of the applicants. To do that, the agency contracted a consultant who hired five “race raters” to analyze the driver’s license photos of the job applicants to determine race. Gaughan ruled that this process fell short.

"The expert reports and testimony provided by [the consultant] are inadmissible because plaintiff fails to present sufficient evidence that the use of 'race raters' is reliable," she wrote.

Gaughan also pointed out the irony of the evidence on which the EEOC relied. "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,'" she added.

In its defense, Kaplan said it only employed practices that are standard in many private companies and governmental organizations.

Read other recent InsideCounsel stories about employment discrimination:

Labor: In discrimination, protections increase but advice stays the same

5 labor and employment issues to watch in 2013

Labor suit against Akin Gump dismissed, labor suit filed against WilmerHale



Cathleen Flahardy

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