- The Washington Times - Thursday, February 20, 2014

Some members of the U.S. Commission on Civil Rights say that a federal panel is, in the interest of fighting racism, engaging in bureaucratic overreach and making it harder for businesses to avoid hiring felons.

The panel’s report, released Thursday evening, targets the U.S. Equal Employment Opportunity Commission over its guidelines for businesses conducting background checks of potential employees. The guidelines warn businesses that such checks could expose them to racial discrimination claims.

The EEOC’s 2012 Guidance states that any employment policy that disfavors persons with criminal records “disproportionally affects racial and ethnic minorities, particularly black or Hispanic with criminal records nationwide,” and then instructs them on ways to avoid rejecting those applicants based on a race or ethnic group’s “higher than average likelihood of a criminal history.”

But some members of the civil rights panel argue in a 350-page report released Thursday that the EEOC’s guidelines are “deeply flawed” and so vague as to be useless.

It also argues that the EEOC’s language and arguments would confuse laymen more than clarify questions and put employers in a no-win situation regarding lawsuits — either they will be sued for racism if they use background checks or be held accountable for ex-felons’ on-the-job actions if they don’t.

“In discouraging the use of criminal background checks through the complexity of the Guidance and the fear that a little knowledge can be a dangerous thing when your friendly neighborhood EEOC investigator comes calling, the EEOC leaves employers exposed to negligent hiring lawsuits,” panel members Peter N. Kirsanow, Abigail Thernstrom and Todd Gaziano wrote in a statement.

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Civil rights panel member Gail Hariot said the EEOC instructs employers that they must be able to demonstrate a “business necessity” for conducting background checks while the “so-called guidance provides almost no actual guidance to employers on what constitutes ‘business necessity.’”

Some members of the panel go on to note one particular piece of EEOC advice — that employers who decline to hire job applicants with criminal records because they are required to do so by state law are “warned that they may or may not be opening themselves up to a lawsuit.”

“If the fact that state law commands an employer to act in a particular way is not enough to establish ‘business necessity,’ then it is doubtful that any employer could ever know for sure that it can decline to hire an employee on the basis of his criminal record,” Ms. Hariot said.

The EEOC is also taken to task for targeting employers whose sole purpose of existence — such as a provider of security personnel — is worthy of an exemption from inquiries into whether the EEOC’s “business necessity” guidelines have been met.

Ms. Hariot said that alone proves there is “strong evidence of the agency’s overreach on this issue.”

• Douglas Ernst can be reached at dernst@washingtontimes.com.

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