Sixth Circuit Dismisses EEOC’s “Race Rating” Expert

Written on Tuesday, May 20th, 2014 by Colin Holloway, Attorney at Law
Filed under: Expert Opinions, ExpertWitness, General, In the News

The US Court of Appeals for the Sixth Circuit issued a ruling that dismissed an unreliable expert witness, demonstrating the strict requirements that must be met by parties seeking to admit expert testimony into a trial. In EEOC v Kaplan Higher Education Corp, the Sixth Circuit criticized the EEOC for calling an unreliable expert to bring a case “on the basis of a homemade methodology, 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 by only the witness himself.”

EEOC v Kaplan Higher Education Uses Unique Expert Witness

Kaplan, a for-profit educational company noted for its college and graduate school test preparation programs, was sued by the EEOC for requiring a credit check from potential applicants as part of the hiring process. The credit check, according to the EEOC, violated Title VII of the Civil Rights Act because it had a disparate impact on African American applicants – meaning more black candidates were eliminated due to the check than white.

In order to prove the disparate impact, the EEOC relied on data from one of the third-party credit-check services used by Kaplan in its hiring process. Since the credit-check service did not have data on the race of each applicant, the EEOC combined the credit data with information on each applicant obtained from the candidate’s state department of motor vehicles. Most states also did not include information on race, however, each provided a color copy of the applicant’s driver’s license – which included a photograph.

Completing the link between credit-check data and the race of each applicant required the EEOC to hire an expert witness who created a process known as “race rating.” The expert’s process, created specifically for the litigation, required five “race raters” to independently identify the race of each applicant based on a visual inspection of the driver’s license photo. If at least four of the five raters agreed, the EEOC’s expert determined that the applicant was a member of the identified race.

Sixth Circuit Dismisses EEOC’s Race Rating Expert Witness

Upon reviewing the EEOC’s race rating expert report, the trial court refused to allow him to testify against Kaplan. On appeal, the Sixth Circuit agreed, finding that the race rating process created specifically for the lawsuit did not meet the Daubert requirements for expert witness testimony. Under Daubert standards, an expert witness may only present testimony to the court if his opinion is based on reliable and scientifically supported knowledge – a standard that the EEOC race rating process failed to satisfy.

In its ruling, the Sixth Circuit identified several reasons to disallow testimony on racial identification by the EEOC’s race rating expert witness:

  1. The EEOC expert did not demonstrate that his newly created race rating system had been tested or that it had an acceptable rate of error. Although the EEOC cross-checked the results with other external sources identifying the Kaplan applicants’ race, the Sixth Circuit determined that cross-checking a sample of the results was insufficient.
  2. The expert’s methodology, invented specifically for the litigation, was not subject to peer review or “submission to the scrutiny of the scientific community.” Courts are often unfamiliar with the subject matter expert witnesses testify about, so when an expert’s methodology has undergone review and critique from his peers, his investigation is more likely to be accepted by the legal community.
  3. The EEOC race rating system did not have a standardized methodology for determining race. Instead, the process relied on the visual assessment of five independent raters who knew the names of each applicant – a fact the court felt could impact the racial analysis.
  4. Without peer review from the scientific community, there was no evidence that the race rating methodology had been generally accepted as reliable.
  5. The court determined that the sample of 1,090 applicants was not representative of Kaplan’s applicant pool as a whole. Of the EEOC expert’s sample, 23.8% of applicants failed the credit-check, however, only 13.3% of applicants failed overall – meaning that the EEOC expert’s results were skewed to favor the plaintiffs’ claim.

The Sixth Circuit’s opinion clearly identified reasons why the EEOC’s rate rating expert witness failed to satisfy the Daubert standard for scientific expert testimony. The unique and highly specific review process created for the purpose of the EEOC’s case against Kaplan was not reviewed or critiqued by the scientific community, and was not created using a sound or objective methodology. As such, the Sixth Circuit refused the EEOC’s expert testimony.

About Colin Holloway, Attorney at Law

LinkedIn Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.

About Colin Holloway, Attorney at Law

LinkedIn Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.