Home > Uncategorized > Accurate consumer reports can still lead to litigation? So says the EEOC.

Accurate consumer reports can still lead to litigation? So says the EEOC.

April 8, 2011

For most of my time as an FCRA defense lawyer, the cases I’ve seen have alleged that the plaintiff-consumer lost access to credit, or had to pay more for credit, because of some error in a consumer report.  But in the past 18 months or so, I’ve seen more cases (and been asked to handle more cases), in which the plaintiff alleges that he or she lost a job, or failed to get a job offer, because of a consumer report.

It’s not surprising that, as more businesses use consumer reports to check current or putative employees, more lawsuits are being filed to challenge such use.  What is surprising – at least to me – is that the EEOC has sued Kaplan, Inc. (the test-prep people), alleging that Kaplan’s use of consumer reports to determine which employees to hire has a disparate impact on minorities and is therefore illegal even if the reports are accurate:

http://www.eeoc.gov/eeoc/newsroom/release/12-21-10a.cfm

Again, the EEOC makes no allegation (at least none that I can see) that the consumer reports that Kaplan uses are inaccurate.  Rather, the EEOC’s claim appears to be that:  a) African-Americans tend to have worse credit and therefore worse consumer reports than others do; so that b) African-Americans are disproportionately likely to have their job applications declined if an employer uses consumer reports; which is unjust because c) an accurate report is not a good indicator of whether a person will be a good employee.

I suspect that allegations a) and b) are correct and that c) is very debatable.  But for me, what’s interesting is the notion that using even a perfectly accurate consumer report can get an employer in trouble.

, with my work schedule,
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