We keep reporting in this space about how federal courts have slapped down the long-shot lawsuits and activist legal positions advanced by the Obama administration’s Equal Employment Opportunity Commission (EEOC). In the Freeman case last year, a Maryland federal judge used such unflattering terms as “laughable,” “unreliable,” and “mind-boggling” to refer to Commission positions, while in the more recent Kaplan case, in which Cato filed a brief, a Sixth Circuit panel was only slightly more polite about the systematic shortcomings in the commission’s case. Both of those cases arose from the commission’s controversial crusade against the use of criminal and credit background checks in hiring.
Since our report in April, the commission has extended its epic, cellar-dwelling record of federal court losses with at least three more defeats.
* Yesterday a Second Circuit panel ruled on a case in which the EEOC had claimed that female and male lawyers at the Port Authority of New York and New Jersey had not received equal pay for substantially equal work. The problems with the commission’s case were many, including a seemingly “random” choice of comparison employees that tried to dodge the significance of substantial differences between them based on how long they had been practicing law and had been at the Port Authority. Above all, the EEOC chose to rest its case on the notion that “an attorney is an attorney is an attorney,” which meant it was entitled simply to assume that Port Authority lawyers “in practice areas ranging from Contracts to Maritime and Aviation, and from Labor Relations to Workers’ Compensation” were all doing the “same” work meriting the same pay. The panel of appeals judges barely concealed its impatience with this unrealistic assumption – judges are if nothing else experienced lawyers themselves – and upheld the dismissal.