Diversenfreude And The EEOC Attack On Kaplan

By Anonymous Attorney

12/22/2010

The EEOC’s "disparate impact" lawsuit against the Kaplan Higher Education Corp. for using credit reports to screen employees reminds me of forced busing: when whites simply picked up and moved to the suburbs, thus creating white districts that couldn’t be blamed for excluding blacks, the federal government "solved" the problem by literally moving blacks back in.

In other words, no matter how plausibly you can claim that you aren’t discriminating based on race, you'll be accused of it. And the remedy will be, for all intents and purposes, the actual physical implantation of black people into the office chairs of Kaplan. It’s hard to see how anything less would satisfy the EEOC.

Kaplan will say, honestly, that credit reports are race-neutral. If it so happens that blacks have bad credit scores, that’s not our problem. Before Griggs v. Duke Power Co, that would have been perfectly legal.

Enter the hideous legal doctrine of "disparate impact": if you don’t have enough blacks on the payroll, you're a racist. Of course, they never state it so bluntly, but the legal world likes to hide its nuttiness with technological-sounding terms.

Even in the wake of Ricci v. Destefano the full ramifications of "disparate impact" aren’t known, so the steroid-pumped EEOC of the Obama administration will probably get beyond summary judgment with its suit against Kaplan. Watch for a new EEOC suit challenging the use of criminal records to screen employees.

Bottom line is that the whole notion of "disparate impact" turns discrimination law on its head and demands equal outcomes, rather than equal opportunities. (Which is really more socialist than socialism: "From each according to his abilities and to each according to his need" actually accounted for differences in human ability!)

So are the credit reports legitimate? I’m always vaguely annoyed when I’m asked for mine, but I'll bet that a comprehensive study would find a solid correlation between a credit score and a reliable, productive employee. Kaplan is probably on the right track there. If they really had guts, they'd assert that blacks have lower credit scores because they have lower IQ’s and are, in fact, less reliable than whites. I wouldn’t expect them to do that, though.

(I recall that when I was an attorney for New York City, it carried a load of "lead paint" lawsuits that claimed, among other things, that lead paint on the walls of city-commandeered housing somehow caused black children living there to have lower IQ’s and learning problems. The city lawyers handling those suits didn’t whip out The Bell Curve

in its defense, but would ask, "Well, what’s mom and dad’s IQ?"