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October 2, 2013

Equal employment opportunity can mean a risky workplace

By

In the wake of the Sept. 16 shootings at the Washington Navy Yard, many questions have emerged. Perhaps the two most important: How could Aaron Alexis, a disturbed young man who had previously been arrested for gun-related violence, gain access to the facility? How could he be employed by The Experts, a defense subcontractor used by Hewlett-Packard?

The Navy has admitted that Alexis‘ secret clearance was based on a background check conducted in 2008, before he apparently manifested the most serious of his problems with mental illness. Even more troubling is the revelation that the government form used to screen for a secret clearance, SF-86, is mostly based on the honor system. Such a system missed the obvious red flags from Alexis‘ past, including his previous arrest in 2004 in Seattle and his subsequent arrest in 2010 in Fort Worth, Texas.

The arrests passed notice because the system only looked for indictments and convictions, and Alexis was never charged following his arrests. According to news reports, Alexis was initially hired in 2012 and worked for the company in Japan. When Alexis was hired, The Experts confirmed his prior clearance with the Department of Defense. The Experts also ran a background investigation and a drug test. Yet, the company’s CEO claims that the arrest incidents did not come up during their investigation.

But what if The Experts had actually turned up these criminal arrests for gun-related violence and refused to hire Alexis? If the company had done so, it might have violated the hiring policy the Obama administration is trying to force on private employers. It could have been accused of discrimination by the Equal Employment Opportunity Commission (EEOC), a federal agency controlled by Obama appointees.

In April 2012, the EEOC issued enforcement guidance severely restricting the use of criminal background checks by employers when hiring new employees. The EEOC claims that because blacks and Hispanics are arrested and convicted at higher rates than whites, the use of a criminal-background check will have a “disparate impact” on minorities and, therefore, violates Title VII of the Civil Rights Act of 1964. Not only does the EEOC guidance treat arrests and convictions differently, it even mandates that businesses cannot deny a person employment just because he has been convicted of a serious crime unless they can demonstrate it is “job-related.”

A Maryland federal judge recently threw out a case brought by the EEOC making these types of dubious claims against a private employer. The defendant, the Freeman Companies, a family-owned business that provides security services for expositions, conventions, corporate events, meetings and exhibit programs, was being sued for running criminal background checks on all of its employees.

The EEOC claimed that Freeman’s policy was discriminatory, but the judge said that the “careful and appropriate use of criminal history information is an important, and in many cases essential, part of the employment process.” The judge stated that the EEOC’s legal theories would “condemn common sense,” and he reprimanded the EEOC for using faulty statistical analysis in attempting to prove that Freeman’s use of background checks had a disparate impact.

Furthermore, the judge derided the EEOC’s aversion to criminal background checks, pointing out that they protect employers from exposure to litigation for their employees’ misconduct.

Background checks help companies reduce the risk of hiring employees who would misappropriate property or sensitive information or harm other employees or the company’s customers, the exact situation now faced by The Experts over the actions of Alexis. To ignore a potential employee’s criminal past — including arrests — is to invite criticism and litigation for a plethora of issues, including potentially negligent hiring that led to the deaths of 12 people.

If the EEOC gets its way, no one will have to pass a background check to be employed, except, of course, its own employees. As the Maryland judge noted in his decision: “The EEOC conducts criminal background investigations as a condition of employment for all employees, and conducts credit background checks on approximately 90 percent of its positions.”

Unfortunately, the terrible tragedy in the Navy Yard graphically illustrates why the Obama administration’s push to force employers to stop using criminal background checks is not only legally wrong, but dangerous. It is another example of government agencies not wanting to live by the same rules they want to impose on private industry and the rest of America.

 Editor’s Note: Michael Flynn co-authored this commentary

- Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

- Michael Flynn is part of The Heritage Foundation's Young Leaders Program.

Originally appeared in The Washington Times.

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