FEBRUARY 21, 2014
A new Obama administration policy that says criminal background checks are discriminatory against minority job applicants is “deeply flawed,” according to half of the commissioners who sit on the U.S. Commission on Civil Rights, the independent and bipartisan federal agency created by Congress decades ago.
The administration has gone after companies that use criminal background checks to screen job applicants, claiming in lawsuits that the probes disproportionately exclude blacks from hire. In the last year the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the nation’s workplace discrimination laws, has sued two large companies that screen criminal background records, asserting that it violates Title VII of the Civil Rights Act. Ironically, the EEOC conducts criminal background checks as a condition of employment and credit background checks for most of its positions.
But when private businesses utilize the tool it violates federal civil rights laws because information about prior convictions is used to discriminate against a racial or ethnic group, according to an EEOC policy issued in mid-2012. A few months ago a federal judge hearing one of the EEOC’s discrimination lawsuits against a family-owned company in Maryland blasted the argument, ruling that the allegations are “laughable,” “distorted,” “cherry-picked,” “worthless” and “an egregious example of scientific dishonesty.”
There are simply no facts to support a theory of disparate impact, the judge wrote in his ruling, further stating: “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.”
On the heels of that whipping the U.S. Commission on Civil Rights, established by Congress in 1957 to enhance enforcement of federal civil rights laws, has released a report in which half of the agency’s commissioners sharply criticize the absurd criminal check regulation. The agency has eight commissioners, four appointed by the president and four by congress. They serve six-year terms and play a vital role in advancing civil rights through objective and comprehensive investigation, research and analysis.
The EEOC’s criminal background check policy is “deeply flawed” and exceeds the agency’s authority, writes U.S. Commission on Civil Rights Commissioner Peter N. Kirsanow, a presidential appointee. Furthermore, it was adopted without releasing a draft to the public, Kirsanow writes. He explains that the foundation of the new policy is flawed because it misapplies disparate impact theory by failing to appropriately compare non-offenders to offenders and by conflating arrestees with convicts. “Perhaps more importantly, discouraging the use of criminal background checks leaves Americans more likely to fall victim to the behavior that leads to negligent hiring lawsuits.”
Here’s another good point made by Kirsanow, an African-American lawyer with an Ivy League degree who sits on the board of the Center for New Black Leadership; the EEO’s new policy “is unlikely to increase employment among African American men who are the primary purported beneficiaries.” The civil rights commission’s vice chair, Abigail Thernstrom, and another commissioner, Todd Gaziano, collaborated with Kirsanow’s statements in the report.
Commissioner Gail Heriot, a law professor at the University of San Diego California, also denounced the policy, writing in the report that it’s an “especially ill-considered idea” that will “almost certainly do more harm than good.” Heriot, a congressional appointee to the civil rights commission, classifies the measure as a bad federal regulatory idea that can do a great deal of damage. “When the EEOC tells employers that they risk liability for race discrimination if they reject job applicants on account of their criminal records, that action will have effects from Maine to the Midway Atoll.”
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