June 5, 2012 | Commentary on Labor Regulation
The Equal Employment Opportunity Commission has been known to defy common sense in the past, but this time it has outdone itself. A recent hiring "Guidance" for employers would not only place co-workers and customers at unnecessary risk, it could make it even harder for some minority workers to find jobs.
The new guidance severely restricts employers' ability to run criminal background checks on prospective employees. The EEOC claims that such checks have a "disparate impact" on racial minorities and are therefore discriminatory.
This is a classic example of a federal agency reaching far beyond its statutory authority. After all, the EEOC has no power to issue regulations. But it gets around this bar by issuing guidance documents that act as a de facto substitute for regulations. Courts, employers and lawyers look to such guidance as standards that employers must meet to avoid liability.
The EEOC now asserts that the long-standard business practice of checking for past criminal activity by job applicants violates Title VII of the Civil Rights Act of 1964.
Felons are not a protected class in this law's text. Title VII only bars discrimination based on race, color, religion, sex and national origin. What makes it difficult for felons -- black or white -- to find work is not racial discrimination, but their own past decisions to commit crimes that carry the risks of detection and punishment.
Let's say a hotel decides that it's too risky for its guests to hire a murderer or a burglar. That's a sound business decision, not discrimination. But according to the EEOC, private employers who make such a risk assessment are out of line.
It's an odd position, especially considering that the federal government itself broadly bans felons from holding certain jobs, such as airport security screeners or child care workers in federal facilities -- such as, say, the EEOC. Only in Washington could blanket exclusions based on the risk of repeated criminal behavior be legitimate when imposed by the federal government, but suspect and discriminatory when imposed by private industry.
In issuing this "guidance," the EEOC makes two leaps of faith. First, it assumes the criminal justice system's handling of violent and non-violent offenses is itself discriminatory -- even though there is no evidence of racial bias. Second, it discounts reams of well-established evidence regarding the recidivism of felons and the enormous liability faced by employers when their employees commit crimes. "Negligent hiring lawsuits" against employers are now commonplace whenever workplace violence or other work-related crime occurs.
The EEOC's groundless guidance seems fated to backfire. It likely will make it more difficult, not easier, for some minority job applicants to find employment.
Studies show that employers who check criminal backgrounds are more likely to hire African-American workers. Why? Background checks actually boost the hiring prospects of African-Americans with no criminal convictions. Deprived of that resource, employers are more likely to "hire defensively," declining to hire African-Americans because of the higher incidence of criminal convictions in that demographic group.
Congress has already taken some action. On May 9, the House amended the Commerce, Justice, and Science appropriations bill to prohibit the EEOC from using any funds to enforce the guidance. A report issued by the Senate Appropriations Committee also criticized the guidance, noting that it "may limit the ability of conscientious employers to hire with confidence and create conflict with Federal and state laws."
But as long as the EEOC Guidance remains, it leaves employers in a Catch-22 situation. They must choose between risking liability for supposedly violating Title VII (by conducting criminal background checks), and risking liability for criminal conduct by employees (by abandoning background checks).
All the while, minority job applicants will see their employment prospects fade.
First appeared on the Washington Examiner.