EEOC chief legal policy advisor Peggy Mastroianni complained in her letter published by the Wall Street Journal on Wednesday that my article on EEOC browbeating of businesses was “inflammatory.” So I aspired for a more subdued tone in my reply to the EEOC, which the Journal published today.
In her March 6 reply to my Feb. 15 op-ed “Perform Criminal Background Checks at Your Peril,”EEOC Associate Legal Counsel Peggy Mastroianni asserts that the EEOC guidance “provides practical advice to employers on balancing workplace security with civil rights.” But what right does the EEOC have to mandate reductions in workplace security? In a continuing Maryland court case, the lawyer for the Freeman Co., a convention and corporate events planner, requested that the EEOC “quantify the amount of risk of recidivism you contend Defendant [Freeman] is required to tolerate with respect to each crime for each of the jobs listed in Exhibit A, and state your basis for contending that this amount of risk must be tolerated in order to be in compliance with Title VII when the use of a criminal history background check produces adverse impact” on minority applicants.
The EEOC refused to answer that question, claiming that it had no obligation to show that rejected job applicants with criminal records didn’t pose excessive risks to fellow employees or customers. This is EEOC’s method in a nutshell: threatening businesses with lawsuits but never having the decency or honesty to specify how much mayhem it expects them to endure in the name of “equal opportunity.”
The Journal also published a letter from Civil Rights Commissioner Peter Kirsanow, who has done stalwart work exposing the folly of the new EEOC guidelines:
Peggy Mastroianni may believe that the EEOC’s new guidance on criminal background checks provides “practical advice to employers,” but the employers I represent and the employers whose representatives testified at the U.S. Commission on Civil Rights’s briefing on this topic beg to differ.
The guidance is opaque even to lawyers, offers no bright-line rules and deliberately conflicts with state law. The guidance’s ambiguity is just one of the things that makes it so worrisome. There is no way to guarantee that you won’t run afoul of the guidance and be subject to a financially ruinous EEOC investigation unless you forego criminal background checks entirely. If you do that, you have two new potential dangers: lose your state license to operate and possibly be hit with a costly negligent-hiring suit. Ms. Mastroianni may think that the state-law conflict is a red herring, but employers are apoplectic.
Ms. Mastroianni also doesn’t address the fundamentally flawed rationale underlying the guidance. Ex-convicts are not a protected class under Title VII. The EEOC attempts to evade this by relying on disparate-impact theory. The problem with this approach is that disparate-impact theory applies to employment cases where the challenged job requirements don’t relate to the applicant’s ability to do the job. In the seminal disparate-impact case Griggs v. Duke Power, there was clear evidence that neither a high-school diploma nor passing an intelligence test were necessary to do the job well because there were already employees in the disputed positions who met neither criterion. But as the EEOC’s own witness admitted at the Commission on Civil Rights briefing, there are no studies indicating whether ex-convicts, regardless of race, are better or worse employees than people without criminal records. The EEOC should avoid applying disparate-impact theory to the hiring of ex-convicts until there is data on this point.
The sad irony of the EEOC’s guidance is that there is some evidence that it actually harms the intended beneficiaries. Preliminary studies suggest that employers are more likely to hire African-Americans when permitted to use criminal background checks. Scholarly studies even suggest that employers are more likely to hire ex-offenders when they have access to criminal background checks. Employers deterred from examining an applicant’s criminal history may wind up discriminating on the basis of race (likely unconsciously) as a proxy for criminal history.
The EEOC’s goal of reintegrating ex-offenders into society is laudable, but this guidance isn’t the way to do it.
Mr. Kirsanow is a commissioner of the U.S. Commission on Civil Rights.
A version of this article appeared March 8, 2013, on page A14 in the U.S. edition of The Wall Street Journal, with the headline: Opaque EEOC Guidance Is a Major Peril for Employers.
(below – illustration from the original WSJ article 2/15/13)
James, you continue to connect with your wussie side when dealing with arrogant, condescending bastards who desparately need – to borrow your word – a thorough boarhawging – lest they miss the saliant points raised in your velvet-lined prose. You wouldn’t use a BB gun against a charging rhino; take off the gloves and put on the brass knuckles (excuse the mnixed metaphor). We will all be better persons for it. Take it from someone with an F- in Tact and Diplomacy.
Secondly, “The sad irony of the EEOC’s guidance is that there is some evidence…”. No offense to Mr. Kirsanow, what is this Alice-In-Orwell Land “guidance” crap? When did “guidance” morph into men with guns and the force of law? My Guidance Counselor was never packing or threatening me with harm if I refused his “guidance” to seek professional help an, instead, went to LSU. Businesses operating in a free society make their mistakes and pay the price the market extracts accordingly. Freedom – what concept.
“Guidance” rhymes with “fecal matter”. And I say that with all due respect.
Poor Peggy Mastroianni. All she wants to do is offer some guidance so that everyone will have an equal opportunity to achieve the American Dream and she gets a hard time.
Sure, all these guidelines are confusing and complying with reams of EEOC rules is annoying, but if Happy Daze Day Care Center happens to hire a nice man convicted of child molestation because there was no background check, and Peggy Mastroianni’s six-year-old son is kidnapped, raped and tortured, it will have all been worth it.
Well, maybe not for Peggy’s little boy. But, where would we be without government guidance? It would be like having a sheep ranch with no sheep dogs. Just like there would be no roads built without the government (who would build them?), nobody would ever be hired if there were no EEOC, Department of Labor and National Labor Relations Board. Who would offer guidance to the employers?
Tom, that’s a vivid way to bring home the potential human cost of this policy. If businesses suspend criminal background checks, there will be more criminal mischief.
I would favor getting rid of most of the criminal laws – I’ve been barking about the drug war for 30 years —
But to let the govt. come in and drop an Iron Curtain around the records of bona fide bad people – folks with a long history of violence against others – simply assures more carnage.
Yeah, but who will hire the criminals?
Wait, never mind. The government will hire them.
There is always another political campaign coming up, and somebody has to stuff the ballot boxes.
Those federal types have been nothing but trouble for years. If you do business in a place where 40% of the people there are X then you’d better have right around that percentage on as employees or that’s a red flag to investigate you. How the hell did it ever come to this?
Ken, I guess that’s the price of social justice. Or maybe that Washington Post editorial was wrong.
It’s high time for a “Civil Rights Reform Act” creating an affirmative right to discriminate against anyone for bad behavior or failing to do their job — regardless of any “disparate impact.” Anyone who opposes it is a racist.