Wall Street Journal: Newest Federal Crime – Not Hiring Felons

Wall Street Journal February 15, 2013

Perform Criminal Background Checks at Your Peril

A federal policy intended to help minorities is likely to have the opposite effect.


Should it be a federal crime for businesses to refuse to hire ex-convicts? Yes, according to the Equal Employment Opportunity Commission, which recently released 20,000 convoluted words of regulatory “guidance” to direct businesses to hire more felons and other ex-offenders.

In the late 1970s, the EEOC began stretching Title VII of the 1964 Civil Rights Act to sue businesses for practically any hiring practice that adversely affected minorities. In 1989, the agency sued Carolina Freight Carrier Corp. of Hollywood, Fla., for refusing to hire as a truck driver a Hispanic man who had multiple arrests and had served 18 months in prison for larceny. The EEOC argued that the only legitimate qualification for the job was the ability to operate a tractor trailer.

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U.S. District Judge Jose Alejandro Gonzalez Jr., in ruling against the agency, said: “EEOC’s position that minorities should be held to lower standards is an insult to millions of honest Hispanics. Obviously a rule refusing honest employment to convicted applicants is going to have a disparate impact upon thieves.”

The EEOC ignored that judicial thrashing and pressed on. Last April, the agency unveiled its “Enforcement Guidance on the Consideration of arrest and Conviction Records in Employment Decisions,” declaring that “criminal record exclusions have a disparate impact based on race and national origin.”

Though blacks make up only 13% of the U.S. population, more blacks were arrested nationwide for robbery, murder and manslaughter in 2009 than whites, according to the FBI. The imprisonment rate for black men “was nearly 7 times higher than White men and almost 3 times higher than Hispanic men,” notes the EEOC. These statistical disparities inspired the EEOC to rewrite the corporate hiring handbook to level the playing field between “protected groups” and the rest of the workforce.

Most businesses perform criminal background checks on job applicants, but the EEOC guidance frowns on such checks and creates new legal tripwires that could spark federal lawsuits. One EEOC commissioner who opposed the new policy, Constance Barker, warned in April that “the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. . . . The Guidance tells them that they are taking a tremendous risk if they do.”

If a background check discloses a criminal offense, the EEOC expects a company to do an intricate “individualized assessment” that will somehow prove that it has a “business necessity” not to hire the ex-offender (or that his offense disqualifies him for a specific job). Former EEOC General Counsel Donald Livingston, in testimony in December to the U.S. Commission on Civil Rights, warned that employers could be considered guilty of “race discrimination if they choose law abiding applicants over applicants with criminal convictions” unless they conduct a comprehensive analysis of the ex-offender’s recent life history.

It is difficult to overstate the EEOC’s zealotry on this issue. The agency is demanding that one of Mr. Livingston’s clients—the Freeman Companies, a convention and corporate events planner—pay compensation to rejected job applicants who lied about their criminal records.

The biggest bombshell in the new guidelines is that businesses complying with state or local laws that require employee background checks can still be targeted for EEOC lawsuits. This is a key issue in a case the EEOC commenced in 2010 against G4S Secure Solutions after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.

G4S provides guards for nuclear power plants, chemical plants, government buildings and other sensitive sites, and it is prohibited by state law from hiring people with felony convictions as security officers. But, as G4S counsel Julie Payne testified before the U.S. Commission on Civil Rights this past December, the EEOC insists “that state and local laws are pre-empted by Title VII” and is pressuring the company “to defend the use of background checks in every hiring decision we have made over a period of decades.”

The EEOC’s new regime leaves businesses in a Catch-22. As Todd McCracken of the National Small Business Association recently warned: “State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.”

At the same time that the EEOC is practically rewriting the law to add “criminal offender” to the list of protected groups under civil-rights statutes, the agency refuses to disclose whether it uses criminal background checks for its own hiring. When EEOC Assistant Legal Counsel Carol Miaskoff was challenged on this point in a recent federal case in Maryland, the agency insisted that revealing its hiring policies would violate the “governmental deliberative process privilege.”

The EEOC is confident that its guidance will boost minority hiring, but studies published in the University of Chicago Legal Forum and the Journal of Law and Economics have found that businesses are much less likely to hire minority applicants when background checks are banned. As the majority of black and Hispanic job applicants have clean legal records, the new EEOC mandate may harm the very groups it purports to help.

Naturally, the EEOC will have no liability for any workplace trouble that results from its new hiring policy. But Americans can treat ex-offenders humanely without giving them legal advantages over similar individuals without criminal records. The EEOC’s new regulatory regime is likely to chill hiring across the board and decrease opportunities for minority applicants.

Mr. Bovard is the author, most recently, of a new e-book memoir, “Public Policy Hooligan.”


8 Responses to Wall Street Journal: Newest Federal Crime – Not Hiring Felons

  1. Jeff King February 15, 2013 at 8:49 am #

    Wow Mr.Bovard! I heard this being discussed this morning on talk radio here in Austin Texas. What a double edged sword businesses are being asked to swing now. Will bonding companies insure businesses who ignore criminal background checks? I doubt it. I take this a back door attack on small businesses. Will the federal government adhere to its own regulations? If so, will they find themselves one day fighting in court, U.S. vs. U.S.? I can see that scenario playing out. This is the height of lunancy! What a bannana republic we now live in! Somebody wake me up from this nightmare.

    • karol July 31, 2013 at 11:51 am #

      we felons are bonded through the state in which we received the felony in. Those who wont hire felons the losers and bigotts!!! Everyone screws up and we all deserve a second chance. We were caught everyone has committed a crime i don’t care who you are you weren’t caught back ground and credit checks for a job, thats a little personal. I have unpaid bills (dont most of us) this does not mean that I do not show up for work, take on extra duties, or work extra hard because i am labled. there are certain felons that do not and should not work around childern, elderly or money but honestly for the most part we are honest and even more hard working cause if we sneeze wrong our jobs are on line. People are constantly talking -hip and making rumors up about a working felon, why? I did the crime and did my time, I paid for my errors but my family, friends and self will be forever punished for the mistake I made. Now how in the hell is that a fair and just world?

  2. Jim February 15, 2013 at 8:53 am #

    Thanks for your comment. if the feds did adhere to their own regulations, it would be a novelty.

  3. Dirk Sabin February 16, 2013 at 6:01 pm #

    What everyone must realize now is that rationality, like Elvis, has left the room. The government pursues demons, flailing about, sometimes nicking a few but generally glad-handing them for campaign donations because they are too damned busy to consider the differences between Right and Wrong.

    • karol July 31, 2013 at 12:03 pm #

      the goverment is out to line thier own pockets they care not for the low income ever heard of the movie “red dawn”? well thats what its going to come down to . Sorry to say we give more to illegal imagrants or those here on green cards buying our places (tax free) the government cares little for those born and raised in the U.S, our childeren go hungry now if we dont have health insurance off to jail we go. I myself do not earn enough to cover that and still pay my rent, forget about food or transportation or even basic neccesitys such as shampoo, food know what I mean?

  4. smitty February 17, 2013 at 8:01 pm #

    Hi Jim, I can’t disagree with your view in this piece.

    On the other hand, society can’t be surprised that those with criminal records hung around their necks that largely prevent them from obtaining more than lower rung jobs-or in many cases any job at all-that they then proceed to commit more crimes.

    Another consideration is the wide array of legislatively invented ‘crimes’ that would not be crimes under prior criteria: violence committed against person and/or property of non-consenting people. These days there are no serious guidelines as to what constitutes criminal behavior…all that’s required is a majority vote in the legislatures.

    A third point:

    The myth of the “law abiding citizen”…

    While the great share of us go about a peaceful existence, confident that we are good “law abiding citizens”…that confidence rests on very thin ice…and day by day the heat is ratcheted up…

    See Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate

    The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to “white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.

    source: http://www.amazon.com/Three-Felonies-Da … 1594035229

    And there is also the confusing briar patch of ridiculous state and local laws…

    Once a prosecutor-or police-decide to target you, as they train a keen eye on you, they need only consult the myriad laws and regulations in order to wrap a criminal accusation around your neck, then proceed with a probability of conviction of 90% or greater. And even if the “crime” be non-violent, if it is a felony, or certain misdemeanors such as domestic troubles, kiss your “right” to possess arms goodbye.

    Though the 2nd Amendment says “shall not be infringed”, it will be, under certain circumstances. Though at first glance this may seem reasonable (remember, the gun-grabbers love that word), it is not. There were felons among our revolutionary ancestors. Once a “felon” has done his time, paid his debt to society, why then must he or she be stripped of their rights? Only those felons that are not intending to do wrongs to person and/or property will obey…

    The comatose, bed-ridden and babies in their cribs (even toddlers are being ‘held to account for paper cut-out guns, tossing imaginary grenades and the like) may be the only law-abiding these days…

    And, the day may also be quite near where “law abiding” may be a shameful badge to bear…

    Check the signatories of the Declaration of Independence, the largest and most prominent signature is that of John Hancock, foremost smuggler of his time…a felon…as were all the other patriots that signed that document…at least they were considered such by the Brits.

    It would seem nearly all of us are felons, the only distinction being whether you’ve been causght and convicted…or not.

    • karol July 31, 2013 at 11:58 am #

      what about the one that rip off taxpayers money (CLALLAM COUNTY COURT HOUSE WORKERS) they end up with a county paid lawyer at the tax payers expense, a paid job seperation and only one out of four has received jail time. True story here in Port Angeles, and we are talking about over fifty thousand in just one case in 2004 sherriff’s evidence room, another from the auditors office where people property taxes were taking wonder how many lost the homes they paid for. Or maybe the police officer that keeps money or drugs found on a person, they do not get fired and labled they are just transfered

  5. Jim February 17, 2013 at 8:08 pm #

    Smitty, I agree – the laws have proliferated to the point of @#$@.

    I have been gung-ho in favor of a ‘repeal’ session of Congress for @ 30 years.

    But to respond to one problem by vesting even more arbitrary power in a federal agency is not an ideal solution.