The Sixth Circuit affirmed a lower court order granting summary judgment in favor of Kaplan in a high-profile credit check lawsuit that the EEOC brought against the education company. The EEOC alleged that Kaplan’s use of credit checks causes it to screen out more African-American applicants than white applicants, creating a disparate impact in violation of Title VII of the Civil Rights Act of 1964. In support of its allegations, the EEOC relied on statistical data compiled by its expert witness. The expert witness assembled a team of “race raters” and directed them to review the photos and classify them by race. Based on the results of this “race rating,” in a sample of 1,090 (out of 4,670 applicants), the percentage of black applicants who were flagged for review based upon their credit histories was higher than the percentage of white applicants who were flagged. The lower district court excluded the EEOC’s expert’s testimony as unreliable. The EEOC’s “homemade” methodology for determining race was, “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.”

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