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  • Tales of the Red Tape #31: Charlie Manson for Hire

    The Equal Employment Opportunity Commission (EEOC) has brought forth yet another excuse to punish employers: Conducting a criminal background check of job applicants could trigger charges of race discrimination.

    No joke.

    By a vote of 4–1, the commission last week approved its new “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.”

    According to said document, individuals in “protected groups” (i.e., African Americans and Hispanics) are convicted of crimes at a rate disproportionately greater than their representation in the population. Consequently, background checks disproportionately screen out minority applicants. Such “adverse impact” is illegal unless an employer can prove a “business necessity.” The racial balance of a company’s workforce is no defense.

    (By way of example, the agency cites a “no-beard” employment policy that may be unlawful [unless job-related] if there’s a negative impact on the employment of African American men—who have a predisposition to a skin condition that causes severe shaving bumps.)

    Executives of Pepsi Beverages know all about the background-check crackdown. The company is on the hook for $3.13 million for a former policy under which applicants who had been arrested pending prosecution were not hired for permanent jobs.

    Well, duh. Most anyone outside of government would understand the issues related to hiring an employee who is about to be embroiled in a trial and who could soon end up behind bars—or who might be a repeat offender. But under the EEOC’s (il)logic, companies could not even consider in the hiring process the pending murder charges against George Zimmerman in the death of Trayvon Martin.

    If the EEOC initiates an investigation, the bureaucrats will examine company records to determine if it has attracted enough applications from protected groups. Because rumors of discrimination could discourage applications from African Americans and Hispanics, the commission would also gather evidence on a company’s “reputation in the community.”

    All of which is part of the EEOC’s strategic plan for 2012–2016, including the E-R-A-C-E (Eradicating Racism and Colorism from Employment) initiative.

    Even if the commission policy made sense on its own terms, the EEOC’s social prescription promises to exacerbate rather than resolve the problem. According to three members of the U.S. Commission on Civil Rights, research suggests that employers who do not use criminal background checks are actually less likely to hire African Americans because they might use race, age, or other characteristics as proxies for past criminal history when they can’t consider the actual criminal histories (or lack thereof) of those who apply for work. As noted by commissioners Peter Kirsanow, Gail Heriot, and Todd Gaziano, “Employer use of criminal background checks may thus actually benefit African American job applicants without criminal records.”

    Be assured, this won’t be the last time the government gets it exactly backwards.

    Posted in Featured [slideshow_deploy]

    11 Responses to Tales of the Red Tape #31: Charlie Manson for Hire

    1. Bobbie says:

      how is this constitutional? A business has a right to hire people according to the businesses' qualifications! people are free to discriminate any time we use our freedom of choice! government isn't suppose to discriminate at any time and clearly laying needless contention on society by doing so and as the author points out exacerbating all matters government is unconstitutional involving itself!

      Skin color is irrelevant for every man to stand accountable to his actions. Exceptions can be made in court without exception in areas beyond ones' control. Like skin color and nationality!!

      This has been brewing. We get phone calls for charities and one called to where my husband said he already gave what he could (to charities we choose and trust) and this guy on the other end said paraphrasing "why are you discriminating against this charity?" He used "discriminating" in his reply! The narrow minded government caused brain damage is deep!!!!! Certainly influenced by the ones who hold degrees in social indoctrination. The only people Obama respects, finds favor and instructs society to listen to only. The open minds that think for themselves are his enemies.

      It's quite concerning to think about who government hires to work on gas lines, sewer systems, all lifes aspects, when we have such a government in total contrast to what America promotes. Individual dignity and good will. No federal case necessary. Please dissolve this threat with discipline!

    2. So let me see if I understand this correctly. It is OK for our Federal and State governments to convict African Americans at an unfair (ergo discriminatory) rate, but it is not OK for business to run background checks. Doesn't the government understand that businesses will simply find another reason not to hire them and not run a background check in the first place? Once again, we have the government at work trying so hard to do right, and all they end up doing is making it worse.

      • Roger S. says:

        By no means is the government "trying hard to do right". Instead, it is trying hard to exert the maximum amount of control it possibly could under the (ever-expanding) lawscape — the maximum amount of control possible to advance its own narrative of the moment. Folks, we are now well along the road to serfdom, all of us. The only ones who benefit from this overreach are the government minions themselves, our new (self-appointed) masters. By the way, they don't like it any better than we do, or than they like us, or each other –such questions are irrelevant to their attitude– but they do like the job security, good income, good bennies and, most importantly, to be able to consider and call themselves our masters. This last, especially, they love!

      • Bobbie says:

        what do you mean "to convict African Americans at an unfair rate?" Please be specific!

    3. Pragmatic says:

      Good post Diane. For once, I'm inclined to agree with your analysis.

    4. AD-RtR/OS! says:

      Welcome to the EU….they make it so onerous to employ someone, that no-one is hired.
      And then, they wonder why the Labor Participation Rate is so low.

    5. Calleedar says:

      As usual, folk who oppose equality purposely report it wrong. Go to http://www.eeoc.gov and read the document! It says (simply) that employers cannot use as a blanket exclusionary policy the fact that an individual has a conviction as a bar to employment. There is no dispute that African Americans and Hispanics are convicted at a much higher rate than Whites. This blogger didn't dispute that (nor seem to have a problem with it?). That being the case, to just say we don't hire ex-offenders has a disparate impact on those mostly convicted. Job related. Is the conviction related to the job? (convicted of bank robbery applying for a job at a credit union…). Read the guidance, I have. It really is common sense. But wait! That's too hard, right. Much easier to just blame the big, bad government!

    6. Mike S says:

      The EEOC's new guidelines will have a significant impact on employers. Pre-employ attorneys and compliance experts are working to provide answers to your questions about EEOC guidance changes. Visit http://portal.pre-employ.com/eeoc-report.php to get Pre-Employ's findings, analysis and direction on establishing best hiring practices based on the new EEOC Enforcement Guidance.

    7. Kerouac says:

      Relax, people. Calleedar has it right. In fact, the EEOC guidance actually reaffirmed a business' right to conduct work-related background checks. This blog is so inaccurate, it's ridiculous.

    8. Elizabeth says:

      "This blog is so inaccurate, it's ridiculous." Amen.

      I work for a large background screening company, and we are constantly keeping ourselves up to date about EEOC developments. I can assure you, I am intimately knowledgeable about these guidelines and they in no way inhibit the employer from making the same hiring decisions they would have made without the guidelines. Please know your facts, and report them as they are, not how you want them to be.

    9. Hillbilly says:

      Bureau-crazy. The EEOC should be more selective and hire people with common-sense.

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