Equal Opportunity for Criminals

“Fairy tales are more than true; not because they tell us that dragons exist, but because they tell us that dragons can be beaten.” — G.K. Chesterton

Every time I think that I’ve seen the most idiotic policy that ever could be foisted upon the American people by their own government, I’ve turned out to be wrong. The most recent outrage is the promulgation of guidelines by the Equal Employment Opportunity Commission (EEOC) that make criminal background checks on prospective employees to be violative of the civil rights laws. It appears that the EEOC believes that denying employment to someone because they have a criminal history has a “disparate impact” on certain minority groups. If that is true, then it would seem to a problem for that class, which is usually an artificial construct anyway.

This disparate impact test is undoubtedly one of the most egregious uses of EEOC’s power. Basically, what it means is that, if a hiring practice or criteria, regardless of its facial neutrality towards race, national origin, sex, etc., and regardless of the intent of the employer, has the effect of denying a certain proportion of a protected group employment, the burden of proof shifts to an employer to show that the practice is necessary, and has a valid, nondiscriminatory reason for its use. Valid, of course, is in the eye of the beholder, or the derriere of the 800 pound gorilla.

The disparate impact policy had its origin in the, perhaps laudable, purpose of piercing subterfuges that employers might have used in the past to deny employment to one simply on the basis of their race or color or sex, without regard to their qualifications. In practice, however, over the past 40 years the test has been little more than a vehicle for harassment of employers, who, quite rationally, seek the best employees they can find. Most employers would do handstands to get good, competent, and honest employees, regardless of their race, ethnicity, or sex.

Having been an employer for the past 30 years, though never having sufficient number of employees to be subject to the EEOC’s jurisdiction, I know how difficult it is to find good and honest employees, and keep them. A criminal record is always a negative for employment of anyone whose trustworthiness the business depends upon. This is especially true of small businesses where a employee may wear many hats. Now, I believe in redemption, and that people can change, but my experience in that regard is that rehabilitation, particularly of someone who has done something serious enough to spend time in prison (with the possible exception of those sentenced to federal prison for certain regulatory offenses, which would be better handled in the civil courts anyway) is a rarity. And it is a rarity that I, and most employers would be foolish to take a chance on.

The main effect of the new EEO guidelines will doubtless be to further put a quash on hiring initiatives by private industry. Why submit yourself to the Hobson’s choice of being at risk of being sued by the EEOC or alternatively risk criminal conduct by an employee which could have an adverse affect on potential customers or clients? If the job or function can be subcontracted, or sent offshore, that seems a much more rational solution. Economic patriotism, like patience, has its limits

I hasten to add that the guidelines promulgated by the EEOC are not the law. They are policy standards that some bureaucrat whose main interest is justifying his job dreams up to remain relevant. The EEOC actually brings relatively few lawsuits on the complaints it receives. Most of the time it engages in the practice of extortion by seeking a settlement from a business that wishes to avoid litigation, and its attendant costs. If they find what they believe is a violation, and it seems that they usually do, and they cannot resolve it, a “Right to Sue” letter is issued, and the complainant may seek out a private lawyer to prosecute the case. In many cases, the alleged violation is so weak or frivolous that it is impossible for the complaint to find a private lawyer who’s willing to take the case, as it nearly always must be on a contingency fee basis. Nevertheless, many, if not most employers regard it as a good business decision to negotiate a settlement rather than go to court. And, unfortunately, it usually is.

Anyway, this is yet another practice the result of which is to discourage hiring at all. Having said all that I have no doubt that criminal background checks has a disparate impact on an identifiable statistic – the unemployment rate, as well as an identifiable group – criminals. Lewis Carroll’s Wonderland has nothing over the Cloud Cuckoo Land we seem to be entering in the good old USA.

For the actual guidelines, see http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm

For more commentary see this link

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