Federal Agency Guesses Race of People, Then Files Bias Lawsuit
by David Almasi
Washington, DC - A legal brief written by the Pacific Legal Foundation and filed October 15 on behalf of itself, the Project 21 black leadership network and others criticizes the federal Equal Employment Opportunity Commission for improperly using racial stereotypes as the foundation for a lawsuit against a business alleging disparate impact on minorities.
In the case of Equal Employment Opportunity Commission v. Kaplan Higher Education Corporation, et. al., the government is suing an employer for instituting a credit screening process meant to flag applicants for certain sensitive positions who may have something in their background that might compromise their integrity on the job. The practice began in part to remain in compliance with U.S. Department of Education guidelines after Kaplan managers were made aware of financial improprieties on the part of some staff members involved in administering student aid.
While the EEOC employs a similar screening process for its own applicants, the agency nonetheless alleges in its lawsuit that Kaplan's methods create a disparate impact for black applicants. To try to prove this, the government employed "race raters" who used Department of Motor Vehicles-supplied photographs of Kaplan applicants. These "race raters" were then asked to determine from the names and photographs if an applicant was "African-American," "Asian," "Hispanic," White" or "other," and their opinions were used as if they were facts as the basis of a government lawsuit.
"Kaplan, the defendant in this case, was attempting to follow previously established government guidelines in order to prevent any potential fraud or abuse of taxpayer and student funds," said Project 21 Co-Chairman Cherylyn Harley LeBon, a former senior counsel with the U.S. Senate Judiciary Committee. "Instead, the government intervened with an unsubstantiated claim and an unscientific methodology in order to support its claim of racial bias among black applicants. Let's hope justice and common sense will prevail."
"Engaging in the legal equivalent of 'heads you lose and tails I win,' the EEOC has attempted to implement an untenable new requirement on employers by this unnecessary expansion of disparate impact racial analysis," said Project 21 Co-Chairman Horace Cooper, a former constitutional law professor and former congressional leadership staff member. "Telling employers who haven't asked or in any way inquired about the racial status of applicants that they cannot adopt simple preventative measures to ensure potential employees won't engage in wrongdoing is unfair. Using government contractors to scour applications to guess the race of various applicants in order to show such disparate impact is just plain bizarre."
EEOC v. Kaplan was dismissed by the U.S. District Court for the Northern District of Ohio and has been appealed by the EEOC to the U.S. Court of Appeals for the 6th Circuit. Project 21's amicus curiae ("friend of the court") brief to the 6th Circuit was written by the Pacific Legal Foundation and is joined by the Cato Institute, Center for Equal Opportunity and Competitive Enterprise Institute. Arguments have not yet been scheduled.
In the brief, the EEOC's methodology is criticized because "race-based distinctions are among the most dangerous and destructive actions government can take." Furthermore, improper processes "offend basic principles of equal protection," and the "use of race raters relies on stereotypes, and demeans its subjects."
Noting that the process was unreliable, unscientific and that "[n]ot one of the race raters had experience identifying individuals' race merely by looking at them," Project 21's brief points out:
[The EEOC's] use of race raters directly contradicts its own directives. When the government refuses to rely on self-identification, it must resort to using so-called racial identifiers, and thus stereotypes and sweeping assumptions. By opting not to ask the individuals to identify themselves, EEOC unilaterally made itself the definer and decider of race. It is impossible to define race in such a simplistic way, stamp an individual with a racial classification and simultaneously treat them with dignity...
Equality before the law means that government will not categorize people based on unscientific, stereotypical criteria, and it allows each person to define himself or herself, and thrive as an individual.
Reflecting on the purpose of Section VII of the Civil Rights Act to prohibiting disparate treatment rather than impact, the brief concludes about the EEOC's lawsuit:
Racial imbalance cannot justify racial preferences, let alone warrant racial quotas. Because government is prohibited from implementing quotas, it is also prohibited from enacting policies that force employers to do the same.
Project 21's Cooper added: "This case was already thrown out of court once and it shouldn't be given new life by the Court of Appeals."
In 2012-13, Project 21 has been involved in the race preferences cases of Schuette v. Coalition to Defend Affirmative Action and Fisher v. University of Texas at Austin and the voting rights case of Shelby County, Alabama v. Holder that were argued before the U.S. Supreme Court. In 2013, besides EEOC v. Kaplan, Project 21 will also be involved in the re-hearing of the Fisher case at the U.S. Court of Appeals for the 5th Circuit. Project 21 legal experts and other members have discussed these cases and others in media interviews this year on MSNBC, Fox News Channel, HBO, Glenn Beck's Blaze TV, the nationally-syndicated Jim Bohannon radio show, Florida Public Radio, the Christian Science Monitor and Reuters.
So far in 2013, Project 21 members, representing Project 21, have generated almost 1,500 known media interviews, op-ed commentaries and citations.