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BOVARD: Making the workplace friendly for felons

U.S. demands ‘no questions asked’ of job applicants

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Should it be a federal offense for businesses to refuse to hire felons? Yes, according to new rules issued by the Equal Employment Opportunity Commission (EEOC) intended to browbeat businesses into changing their hiring standards to benefit criminal offenders.

The EEOC is dedicated to boosting employment of "protected groups." The agency's "Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions," released last April, notes that the imprisonment rate for black men "was nearly 7 times higher than white men and almost 3 times higher than Hispanic men."

Since blacks and Hispanics have higher crime rates, the EEOC has uncorked more than 20,000 tangled words to sway businesses to forgo criminal background checks on job applicants. Even though most businesses perform those checks, the EEOC has made that practice far more legally hazardous -- and far more likely to provoke a federal lawsuit alleging discrimination.

John Hendrickson, a top EEOC attorney in the Midwest, told the Chicago Tribune: "I would suggest to businesses that they think long and hard about why they think they need to do a criminal background check."

The EEOC's new rules have evoked vigorous opposition from Civil Rights Commissioner Peter Kirsanow, a Cleveland lawyer with a long record of speaking out against abusive federal affirmative action practices. Mr. Kirsanow recently warned, "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 forgo 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."

According to EEOC chief legal policy adviser Peggy Mastroianni, however, the commission's interpretation of federal law "supplants" state and local laws that prohibit businesses from hiring employees with criminal records for certain jobs. This is especially bad news for home repair and home health care businesses.

The EEOC refuses to look beyond the groups that its intervention purportedly benefits. Pepsi paid $3.1 million last year to settle an EEOC class-action lawsuit spurred by the company's refusal to hire people with arrest and conviction records. After Pepsi caved, the EEOC issued a press release referring to the "victims of the former criminal background check policy" at Pepsi. Yet the commission ignores the victims that will be created when companies bow to federal pressure and add violent employees to their payroll.

Ms. Mastroianni asserts that the EEOC guidance "provides practical advice to employers on balancing workplace security with civil rights." Where did the EEOC get the right to mandate reductions in workplace safety?

This issue is already playing out in courtrooms across the nation. In an ongoing 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 [of the Civil Rights Act of 1964] 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 did not pose excessive risks to fellow employees or customers. There is no chance that the EEOC will specify exactly how many additional thefts and assaults in the workplace it thinks are necessary to incarnate its vision of "equal opportunity." As the crowning hypocrisy, the EEOC refuses to disclose whether it uses criminal background checks for hiring people at its agency headquarters.

The EEOC's new hiring regime may run into judicial buzz saws from judges exasperated with an agency that makes up the rules as it goes along. Because minorities have more credit problems, the EEOC has been suing companies that conducted credit checks on job applicants. Their highest-profile case -- against Kaplan Higher Learning Corp. -- collapsed in late January. U.S. District Judge Patricia Gaughan tossed the case in part because the EEOC's data were derived from a panel of utterly unscientific "race raters" who looked at photos from state driver's licenses and guessed which ones were "African-American." Judge Gaughan noted how the agency disregarded its own recommendations: "The EEOC itself discourages employers from visually identifying an individual by race and indicates that visual identification is appropriate 'only if an employee refuses to self-identify.'" Unfortunately, the EEOC routinely ignores federal court decisions that seek to curb its power.

Congress never intended to give equal opportunity to felons and ex-convicts when it enacted the Civil Rights Act of 1964. The EEOC is enforcing a "law" that Congress would never enact unless most congressmen want to get bounced out of office at the next election. Maybe congressmen will take time off from making speeches invoking freedom to actually rein in a federal agency trampling Americans' rights.

James Bovard is the author most recently of a new e-book memoir, "Public Policy Hooligan" (Sixth Street Books, 2012).

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