A federal policy intended to help minorities is likely to have the opposite effect.
By James Bovard
Should it be a federal
crime for businesses to refuse to hire ex-convicts? Yes, according to
the Equal Employment Opportunity Commission, which recently released
20,000 convoluted words of regulatory "guidance" to direct businesses to
hire more felons and other ex-offenders.
In the late 1970s, the EEOC began
stretching Title VII of the 1964 Civil Rights Act to sue businesses for
practically any hiring practice that adversely affected minorities. In
1989, the agency sued Carolina Freight Carrier Corp. of Hollywood, Fla.,
for refusing to hire as a truck driver a Hispanic man who had multiple
arrests and had served 18 months in prison for larceny. The EEOC argued
that the only legitimate qualification for the job was the ability to
operate a tractor trailer.
U.S.
District Judge Jose Alejandro Gonzalez Jr., in ruling against the
agency, said: "EEOC's position that minorities should be held to lower
standards is an insult to millions of honest Hispanics. Obviously a rule
refusing honest employment to convicted applicants is going to have a
disparate impact upon thieves."
The EEOC ignored that judicial thrashing and pressed on. Last April,
the agency unveiled its "Enforcement Guidance on the Consideration of
arrest and Conviction Records in Employment Decisions," declaring that
"criminal record exclusions have a disparate impact based on race and
national origin."
Though blacks make up only 13% of the U.S. population, more blacks
were arrested nationwide for robbery, murder and manslaughter in 2009
than whites, according to the FBI. The imprisonment rate for black men
"was nearly 7 times higher than White men and almost 3 times higher than
Hispanic men," notes the EEOC. These statistical disparities inspired
the EEOC to rewrite the corporate hiring handbook to level the playing
field between "protected groups" and the rest of the workforce.
Most businesses perform criminal
background checks on job applicants, but the EEOC guidance frowns on
such checks and creates new legal tripwires that could spark federal
lawsuits. One EEOC commissioner who opposed the new policy, Constance
Barker, warned in April that "the only real impact the new Guidance will
have will be to scare business owners from ever conducting criminal
background checks. . . . The Guidance tells them that they are taking a
tremendous risk if they do."
If a background check discloses a
criminal offense, the EEOC expects a company to do an intricate
"individualized assessment" that will somehow prove that it has a
"business necessity" not to hire the ex-offender (or that his offense
disqualifies him for a specific job). Former EEOC General Counsel Donald
Livingston, in testimony in December to the U.S. Commission on Civil
Rights, warned that employers could be considered guilty of "race
discrimination if they choose law abiding applicants over applicants
with criminal convictions" unless they conduct a comprehensive analysis
of the ex-offender's recent life history.
It is difficult to overstate the EEOC's zealotry on this issue. The
agency is demanding that one of Mr. Livingston's clients—the Freeman
Companies, a convention and corporate events planner—pay compensation to
rejected job applicants who lied about their criminal records.
The biggest bombshell in the new
guidelines is that businesses complying with state or local laws that
require employee background checks can still be targeted for EEOC
lawsuits. This is a key issue in a case the EEOC commenced in 2010
against G4S Secure Solutions after the company refused to hire a
twice-convicted Pennsylvania thief as a security guard.
G4S provides guards for nuclear power
plants, chemical plants, government buildings and other sensitive sites,
and it is prohibited by state law from hiring people with felony
convictions as security officers. But, as G4S counsel Julie Payne
testified before the U.S. Commission on Civil Rights this past December,
the EEOC insists "that state and local laws are pre-empted by Title
VII" and is pressuring the company "to defend the use of background
checks in every hiring decision we have made over a period of decades."
The EEOC's new regime leaves businesses
in a Catch-22. As Todd McCracken of the National Small Business
Association recently warned: "State and federal courts will allow
potentially devastating tort lawsuits against businesses that hire
felons who commit crimes at the workplace or in customers' homes. Yet
the EEOC is threatening to launch lawsuits if they do not hire those
same felons."
At the same time that the EEOC is
practically rewriting the law to add "criminal offender" to the list of
protected groups under civil-rights statutes, the agency refuses to
disclose whether it uses criminal background checks for its own hiring.
When EEOC Assistant Legal Counsel Carol Miaskoff was challenged on this
point in a recent federal case in Maryland, the agency insisted that
revealing its hiring policies would violate the "governmental
deliberative process privilege."
The EEOC is confident that its guidance will boost minority hiring,
but studies published in the University of Chicago Legal Forum and the
Journal of Law and Economics have found that businesses are much less
likely to hire minority applicants when background checks are banned. As
the majority of black and Hispanic job applicants have clean legal
records, the new EEOC mandate may harm the very groups it purports to
help.
Naturally, the EEOC will have no
liability for any workplace trouble that results from its new hiring
policy. But Americans can treat ex-offenders humanely without giving
them legal advantages over similar individuals without criminal records.
The EEOC's new regulatory regime is likely to chill hiring across the
board and decrease opportunities for minority applicants.
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