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)