The EEOC Has Failed Martin Luther King Jr.

Jason Morris

EEOC and background checks

I have taken a long hiatus from posting to our blog.  There are several reasons, time is one of them but mostly because of the wonderful bloggers we now have; Nick, Angela, Lauren and Kevin have done a great job!  Don’t ask Nick, he’ll tell you its because he is tired of correcting my horrible writing skills. (Shameless plug to the best editor and ghost writer we have!) I am coming out of retirement, probably temporarily, because I just read the best article I have yet to see on the new EEOC Guidance in Forbes Magazine.  I’ll save the commentary because it stands on its own, I will however highlight my favorite quotes below!  If you have not been following our excellent reporting on this issue, now is your chance, this is the one article you should read!

At the heart of the nation’s anti-discrimination laws is the principle most famously articulated by Martin Luther King, Jr., that persons should “not be judged by the color of their skin but by the content of their character.”

So even though the purpose of Title VII is to prevent employers from discriminating against individuals based on certain criteria precisely because they say nothing about an individual’s character or fitness, the EEOC now seeks to prevent or limit employers from considering a factor—serious criminal conduct—that bears directly on these job-related considerations.

The EEOC’s policy repudiates what the federal government’s own employment practices make obvious:  A person’s history of compliance with the law is relevant to any job.  In a recent decision, NASA v. Nelson, the Supreme Court upheld the federal government’s inquiry into whether employees of federal contractors had previously used drugs because “the Government is entitled to have its projects staffed by reliable, law-abiding persons”

The Government Checks Criminal Records. Why Can’t Private Employers?

 

EEOC

 

The government’s lawsuits against BMW and Dollar General DG +0.84% over using criminal background checks to screen employees represents an aggressive new assertion of the disparate impact theory of discrimination. This guest post by two partners in Jones Day’s Washington office suggests the Obama administration has gone too far. Michael A. Carvin served from 1985 to 1987 as the Deputy Assistant Attorney General for the Civil Rights Division of U.S. Department of Justice. Eric S. Dreiband served from 2003 to 2005 as the General Counsel of the U.S. Equal Employment Opportunity Commission.

At the heart of the nation’s anti-discrimination laws is the principle most famously articulated by Martin Luther King, Jr., that persons should “not be judged by the color of their skin but by the content of their character.”

Title VII of the Civil Rights Act codifies that principle by prohibiting discrimination in employment on the basis of the irrelevant characteristics of race, color, religion, sex, or national origin.

But the Equal Employment Opportunity Commission, which enforces Title VII, has turned the principle on its head. As part of its campaign to seek relief for convicted criminals under Title VII, the EEOC has adopted an enforcement policy making it presumptively unlawful for an employer to consider an applicant’s prior criminal history as a basis for denying employment. So even though the purpose of Title VII is to prevent employers from discriminating against individuals based on certain criteria precisely because they say nothing about an individual’s character or fitness, the EEOC now seeks to prevent or limit employers from considering a factor—serious criminal conduct—that bears directly on these job-related considerations.

Thus, just this month, we see the spectacle of the federal government suing a private employer, BMW, for violating the “equal employment opportunities” of “black” applicants because, according to the EEOC’s complaint, the employer excludes from its workforce those convicted of “Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations,” as well as “theft, dishonesty, and moral turpitude.” While the EEOC may believe that prior convictions for murder, rape, and theft are not relevant considerations in assessing competing applicants, that idiosyncratic view is certainly counter-intuitive and, more to the point, provides no basis for inferring racial discrimination.

The EEOC’s sole basis for alleging that excluding murderers, rapists, etc. from one’s workforce denies “equal opportunity” on a racial basis is that the “policy operates to exclude disproportionate percentages of blacks.” But, due to factors wholly beyond any employer’s control, there are statistical differences in the rate of criminal convictions between various races and between men and women. Thus, any effort to consider prior serious felony convictions will almost inevitably have the “disparate impact” EEOC alleges (particularly since, in a policy irreconcilable with well-established Supreme Court precedent and the law itself, the EEOC requires the employer to disprove this presumed “impact”).

Indeed, in one pending lawsuit, the EEOC alleges that the company’s use of criminal history in hiring is sex discrimination against men, white or minority, because men disproportionately commit more crimes than women. Ironically, by seeking Title VII relief for men but not for women, even when women have been denied employment for committing similar crimes, the EEOC itself is excluding certain women because of their sex—something that Title VII expressly condemns. Likewise, in its case against BMW, EEOC decided not to seek relief for 18 criminals because they are, according to EEOC, “non-black.” It appears that to EEOC some criminals are worth more than others, depending on their gender and race.

Thus, every consideration of prior serious felonies will create the clear risk of “disparate impact” EEOC investigations and class action lawsuits. Worse still, the pressure for employers to hire and retain convicted felons is greatly exacerbated because the EEOC’s policy makes it impracticable, if not impossible, to justify consideration of prior felonies as a legitimate employment concern, even though the federal government itself takes account of such prior convictions in its own personnel decisions.

According to the EEOC, an employer must show that its criminal conviction policy “operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.” But there are no statistical studies showing that a convicted rapist is more likely to embezzle funds from an employer or that a convicted embezzler is more likely to endanger fellow employees. No company can realistically meet this evidentiary burden.

The EEOC’s policy repudiates what the federal government’s own employment practices make obvious: A person’s history of compliance with the law is relevant to any job. In a recent decision, NASA v. Nelson, the Supreme Court upheld the federal government’s inquiry into whether employees of federal contractors had previously used drugs because “the Government is entitled to have its projects staffed by reliable, law-abiding persons” and “[q]uestions about illegal-drug use are a useful way of figuring out which persons have these characteristics.” The Court emphasized that questions about an applicant’s “violations of the law,” like other questions going to the applicant’s “honesty or trustworthiness,” are “reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business.”

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Jason Morris

President & Chief Operating Officer at EmployeeScreenIQ
A veteran screening and risk management professional, Jason Morris founded EmployeeScreenIQ in 1999 and acts as the company’s chief operating officer and president. Morris is a frequent speaker delivering captivating, interactive discussions on background checks, global screening, recruitment and staffing. He educates audiences in best practice initiatives as they relate to organizational employment screening programs. Morris has been quoted in numerous business and industry publications including The Wall Street Journal, MSNBC.com, USA Today, New York Times, among others. He is also a licensed private investigator in the states of Ohio, Illinois, New Jersey, Texas, Arizona and Nevada.
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