MILLER: Obama calls racism on criminal background checks

EEOC would force ex-cons on employers

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Not wanting to employ a criminal makes you a racist. At least that is what the Obama administration has determined to be law with a regulation made without congressional approval. Businesses are fighting the charge that not wanting ex-cons on the payroll is illegal discrimination.

On June 11, the Equal Employment Opportunity Commission (EEOC) filed federal lawsuits against BMW and Dollar General store alleging that their use of criminal background checks violated the Civil Rights Act of 1964, which prohibits discrimination on the basis of race.

The agency claims that the companies disproportionately screened out black Americans when they fired or did not hire those with criminal records.

Like almost all other employers, Dollar General conditions its job offers on criminal background checks. The standard screen looks for certain types of offenses — such as theft and fraud — within a certain period. The EEOC claims this process “results in a disparate impact against blacks,” even though the standard is the same for whites and blacks.

The case filed in federal court in Illinois claims that the almost 11,000-store nationwide chain, which employs 95,000 Americans, unfairly rejected two black applicants — one convicted of drug possession, the other who said the felony charge on the record was a mistake.

A spokesman for Dollar General said the company will fight the EEOC lawsuit and stands by its policies in order to create a safe environment for its customers and employees.

In the case in U.S. District Court of South Carolina against BMW, the federal government said the claimants were employees of a contractor, but when the contract ended, they went through a criminal check with the car company to qualify for employment with the new logistics contractor and several failed.

Ken Sparks, a spokesman for the car company, told me, “BMW believes that it has complied with the letter and spirit of the law and will defend itself against the EEOC’s allegations of race discrimination.”

The company employs thousands of people in its South Carolina plant.

These lawsuits came out of a guidance issued by the EEOC in April 2012. It ruled that employers should not use arrest records because they are unreliable. For convictions, the Obama administration unilaterally determined that companies have to prove that the reason for not hiring the ex-con was specifically “job related” and a “business necessity.”

So Dollar General will have to hire a known thief to work in the stockroom, unless it somehow could prove that stealing the merchandise would affect the publicly traded corporation’s bottom line.

You may be wondering how Washington suddenly decided that it is racial discrimination to not hire a criminal.

In the twisted thinking of the Labor Department, it is because blacks and Hispanics have significantly higher rates of incarceration than whites. The department’s directive cited a Pew Center survey that showed one out of 106 white men is in jail, compared with one out of 36 Hispanic men and one out of 15 black men.

In addition, while blacks make up 13 percent of the overall U.S. population, they account for 28 percent of those arrested and almost 40 percent of all the people in jail.

House Republicans have been watching closely the machinations at the EEOC. Rep. Tim Walberg, chairman of the Education and Workforce subcommittee on workforce protections, held an oversight hearing on how the new regulations affect employers’ ability to protect their workers and customers.

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