Posted on May 15, 2014

What Is the Worst Agency in Washington, D.C. Today?

George Leef, Forbes, May 15, 2014


One of them is unquestionably the Equal Employment Opportunity Commission, whose arrogance and hypocrisy recently led to a scalding rebuke from the Sixth Circuit in EEOC v. Kaplan.

But before going into that case, let’s take a look at this agency. It was established in 1965 to enforce the 1964 Civil Rights Act’s prohibition against discrimination in employment. That is the law that its famous sponsor, Senator Hubert Humphrey, denied would lead to employment quotas. Responding to criticism of the bill that it might require employers to hire by quotas to avoid running afoul of the law, Humphrey replied,

If the Senator can find in Title VII any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin, I will start eating the pages one after another, because it is not in there.

Unfortunately, just as the words of the Constitution have been ignored by people intent upon promoting a big government agenda, so too with the words of the Civil Rights Act. It wasn’t long before the EEOC, filled with zealous people imbued with an egalitarian vision of the labor market and hyped up on the power to sue companies, began to enforce the law in ways that made quota hiring the only safe course.

{snip} If the EEOC bureaucrats just waited for cases where there was evidence of overt discrimination against applicants due to race or gender, they’d have precious little to do.

Therefore, they came up with “disparate impact” theory. Under that theory, they can sue employers whenever they believe that some hiring standard or employment practice has more impact on a “protected” minority group than on everyone else. Using “disparate impact” theories, the EEOC has sued many companies on the flimsiest of grounds. If the EEOC wins (and it often does because many firms choose to settle rather than fight a federal agency with inexhaustible resources), the bureaucrats get to crow about their apparent success and importance. And when it loses, that is no skin off the noses of the bureaucrats and the case is soon forgotten.

In Kaplan, the EEOC charged the company with a violation of the law because it used credit checks in evaluating applicants for certain positions. Can’t a company try to screen out people who have bad credit history for jobs where the access to money might prove to be too much of a temptation? Not if it creates a “disparate impact” on minorities said the EEOC.

One problem for the EEOC, however, was that the outside firms Kaplan used to do the credit checks never asked the applicants about their race.

So, to find some reason for pushing its case, the EEOC contracted with an “expert,” Kevin Murphy. Murphy then hired five individuals who, based on drivers license photos obtained from state agencies, declared what they thought each applicant’s race was.


Based on such “race rating,” the EEOC declared that Kaplan’s color-blind policy of trying to avoid hiring individuals who might be wrong for a job dealing with money was illegal because it appeared to rule out disproportionately more minorities.

Does that sound like a sensible use of tax dollars? Or does it sound like a government agency wasting money while looking for an excuse to sue?

Instead of caving in, as companies often do when confronted by the EEOC, Kaplan fought the complaint. The district court judge who heard the arguments agreed that the EEOC’s case was without merit and dismissed it. Its lawyers having nothing better to do, the Commission appealed to the Sixth Circuit. That proved to be a gigantic blunder.

The three-judge panel on the Sixth Circuit upheld the district court’s ruling and its opinion, authored by Judge Raymond Kethledge, excoriated the EEOC.

He noted the hypocrisy of the EEOC’s position, writing, “In this case the EEOC sued the defendants for using the same type of background check that the EEOC itself uses . . . [T]he EEOC runs credit checks on applicants for 84 of the agency’s 97 positions . . . For that practice, the EEOC sued Kaplan.”

Judge Kethledge also blasted the EEOC’s “homemade methodology” for detecting racial impact. (In an earlier case, another federal judge had called Murphy’s approach “laughable” but that did not deter the agency from trying the same stunt again.)


Lawyer Hans von Spakovsky, writing a Heritage Foundation issue brief about this case and the EEOC’s entire approach, stated, “The EEOC’s lawsuits are based on an untenable and dubious legal theory that puts the public and employers at risk from the criminal conduct of employees. The EEOC outlined its legal theory in a 2012 ‘Enforcement Guidance” for employers, which claims that criminal background checks . . . qualify as actions that have a ‘disparate impact’ on non-white job applicants. The EEOC claims that this violates federal antidiscrimination protections despite the fact that having a criminal record is not listed as a protected basis under the law.”

Sadly, Kaplan is not an outlier. Most of the EEOC’s cases are like it. The commission’s bureaucrats strain to find reasons to issue complaints. Would you believe that it has gone after a trucking company for trying to keep out drivers with a history of alcohol abuse?


Market competition for capable workers has pretty much exterminated real employment discrimination. The EEOC is a costly (budget of around $370 million annually) bureaucracy that is worse than useless.

If the U.S. ever gets over its infatuation with bureaucratic “solutions” for all real and imaginary problems, the EEOC should be among the first agencies to be dumped.