EEOC Vehemently Disagrees with my Wall Street Journal piece

The Wall Street Journal just posted a letter from the EEOC’s chief legal policy advisor vehemently disagreeing with my article on the EEOC campaign to pressure businesses to hire more criminal offenders.

Regarding the EEOC lawyer’s final comment – It is unfortunate that Ms. Mastroianni did not specify exactly how much workplace safety the EEOC expects businesses to sacrifice in the name of civil rights.

Wall Street Journal LETTERS
March 5, 2013, 3:21 p.m. ET

There’s No Peril in Following EEOC’s Hiring Guidance

I write in response to “Perform Criminal Background Checks at Your Peril” (op-ed, Feb. 15), James Bovard’s misleading critique of the U.S. Equal Employment Opportunity Commission’s guidance on criminal record exclusions and Title VII of the Civil Rights Act.

In 1987, when Justice Clarence Thomas was chair, the EEOC first issued guidance saying that criminal background checks, like other hiring requirements that exclude people, should relate to the job. The EEOC, following court precedent, listed three factors that employers should consider during the screening process: the nature of the offense, when it occurred and the nature of the job. The EEOC did not stretch the law in 1987; it simply followed the law and continues to do so.

In 2012, the EEOC updated its guidance on using arrest and conviction records to reflect technological, legal and social developments in the intervening decades. Contrary to Mr. Bovard’s inflammatory assertions, the 2012 guidance does not make it a “federal crime for businesses to refuse to hire ex-convicts.” Like the guidance issued 25 years earlier, the updated guidance is based on the premise that employers can best manage the risk of crime in the workplace by screening applicants or employees in a targeted and fact-based way.

Mr. Bovard argues that the EEOC should provide a complete safe harbor for employers who reject applicants with criminal records because of state law. However, Title VII does not allow a complete safe harbor because it supplants any state law that requires discrimination. In any event, our experience has been that the legal conflict which Mr. Bovard warns of is, in fact, a red herring.

The updated guidance provides practical advice to employers on balancing workplace security with civil rights.

Peggy Mastroianni
Legal Counsel

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