Quotas for Criminals

No, not traffic cop ticket-writing quotas: Government-mandated quotas for hiring criminals. We’re that close to them.

The latest decrees, from the Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs (OFCCP), would virtually prohibit employers from using criminal background checks to screen job applicants. But unlike earlier passivity, the outrage from employers is now actually provoking a rebellion, including the improbable combination of BMW and Dollar General stores—both of which are united in their need for trustworthy employees.

The civil rights grievance industry’s claim is that such checks produce an illegal “disparate impact” against black and Hispanic job applicants, thus perpetuating discrimination against them. Under this theory, a facially neutral practice (e.g., requiring a college degree) may be declared discriminatory if it produces sufficiently discriminatory results. (An employer would then bear the burden of proof in arguing its requirement was justified.) If a job offer is made, the applicant might well be disqualified (perhaps following litigation) for having committed a job-related crime.

Conservative office-holders remained silent about this bizarre policy. Certainly, conservatives (with the honorable exception of IRS huntress Cleta Mitchell) did not press this as a major point against the confirmation of Thomas Perez as Secretary of Labor, whose office would enforce this policy toward private federal contractors. (I made the case against the Obama Administration policy and Perez nomination, here and here.) Fortunately, a federal district court judge, (a Bush 43 appointee) has put the kabosh (link no longer available) on one EEOC suit against a company that provides services for events such as conventions, in a quite spectacular way. Perhaps the judge’s stern words may buck up spineless legislators, who have long ceased to speak to fellow Americans as this judge urges.

Issuing a summary judgment in favor of the Freeman company, Maryland federal district court Judge Roger W. Titus accused the EEOC of committing “an egregious example of scientific dishonesty” in its presentation of the data. In “cherry-picking” numbers, the EEOC statistical submission contained a “mind-boggling number of errors.” Unfortunately, this conviction of “scientific dishonesty” will not prevent the statistical consultant from violating EEOC’s own criminal background check requirements, when they hire him again.

But it gets worse for numbers-driven law enforcement:

The story of the present action has been that of a theory in search of facts to support it. But there are simply no facts here to support a theory of disparate impact resulting from any identified, specific practice of the Defendant.

Indeed, any rational employer in the United States [87% of whom use criminal-background checks in hiring] should pause to consider the implications of actions of this nature brought based upon such inadequate data. By bringing actions of this nature, the EEOC has placed many employers in the “Hobson’s choice” of ignoring criminal history and credit background, thus exposing themselves to potential liability for criminal and fraudulent acts committed by employees, on the one hand, or incurring the wrath of the EEOC for having utilized information deemed fundamental by most employers. Something more, far more, than what is relied upon by the EEOC in this case must be utilized to justify a disparate impact claim based upon criminal history and credit checks. To require less, would be to condemn the use of common sense, and this is simply not what the discrimination laws of this country require.

Shut up, EEOC, the judge explained! What a radical legal idea: “common sense”! Civil rights enforcement would be revolutionized for the benefit of all, were this to become the new standard. While statistical consultants of the sort relied on by EEOC might protest a disparate impact on their employment, the country would be benefited immensely.

Some further background may highlight the absurdity of what the EEOC has done. In a letter to the Wall Street Journal, an EEOC spokesperson insisted on the moderate nature of the reform, by hiding behind the robes of now-Justice Clarence Thomas.

In 1987, under then-Chairman Clarence Thomas, during the Reagan administration, the EEOC issued guidance to employers that use background checks about how to do so lawfully in accordance with Title VII. Guidance on the subject was also issued in 1990 under Chairman Evan Kemp, during the George H.W. Bush administration. Last year, the commission updated the guidance; however, it by no means marks a sea change in EEOC practice or policy.

Donald R. Livingston, who was EEOC General Counsel under the late Chairman Kemp, would do more than beg to differ; he was on the legal team that represented Freeman.

What we are seeing in the EEOC’s radicalization of civil rights enforcement is the culmination of a mentality that employers must function as charities, providing a “living wage,” health care, and now jobs for the most marginally unemployable. Such abuse of the law deflects us from developing true social justice. American society does suffer from racial stereotypes, as we saw from presidential candidate Barack Obama’s 2008 repetition of the absurd urban myth that more black men are in prison than in college. Criminal background checks enable workplaces where racial and other myths meet their just exposure.