|Obama EEOC: Employers Who Screen Convicted Felons May Be Liable|
By Timothy H. Lee
Thursday, February 28 2013
“An employer’s use of an individual’s criminal history in making employment decisions may, in some instances, violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964, as amended.”
—Equal Employment Opportunity Commission (EEOC) memorandum, "Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act of 1964"
Screen for felony convictions, and you may be sued. That’s an actual warning to American employers, courtesy of the Obama EEOC.
During my years of legal practice, I represented on multiple occasions businesses whose employees had unfortunately committed acts of violence, theft or destruction. In cases where the employer in question had ignored or failed to ascertain the employee’s criminal history, the likelihood of liability understandably increased dramatically.
For that reason, employment attorneys actively encourage the use of background checks in the hiring process. Unsurprisingly, 92% of employers follow that precautionary logic, according to a recent human resources management survey. And it’s not just to protect innocent third parties. Those measures also help prevent such risks as employee theft, substance abuse and fraud.
Enter the EEOC.
According to its memorandum, employers now face a paradox. On the one hand, if they screen an applicant on the basis of felony conviction, the EEOC may sue. On the other hand, if they ignore the warning signs and hire an applicant despite a felony conviction, victims of employee misconduct may sue.
Exacerbating matters, this constitutes another example of an Obama regulatory agency acting beyond the parameters of federal law.
Federal courts have specifically held that employers may refuse employment to convicted felons, on the basis of both business necessity and risk to property and safety. Moreover, the EEOC admits on its own website that, “There is no Federal law that clearly prohibits an employer from asking about arrest and conviction records.” It continues, “However, using such records as an absolute measure to prevent an individual from being hired could limit the employment opportunities of some protected groups, and thus cannot be used in this way.”
In other words, it’s not federal law that matters. What matters is the Obama Administration’s ideological agenda – not to mention more jackpot justice opportunities for plaintiffs’ attorneys who constitute such a core element of the Obama donor coalition.
So how does the EEOC justify this overreach? Its legal fig leaf is the legal concept of “disparate impact” liability. That dubious doctrine holds that an otherwise innocent employment practice can nevertheless trigger liability because it has a statistically disproportionate “adverse impact” upon one racial, gender, religious or ethnic group or another.
The logical frailty of disparate impact liability is obvious. For example, if the EEOC really believes its own edict, why doesn’t it sue the National Basketball Association or National Football League? After all, their selection criteria have an extremely disparate impact upon women, Asians, Latinos and other groups protected by the Civil Rights Act of 1964 relative to their proportion of the U.S. population. As another example, how does the percentage of Christians among university faculties compare with their portion of the general population?
Neither logic nor law, however, seem to deter the EEOC:
“African-Americans and Hispanics are incarcerated at rates disproportionate to their numbers in the general population. Based on national incarceration data, the U.S. Department of Justice estimated in 2001 that 1 out of every 17 white men (5.9% of the White men in the U.S.) is expected to go to prison at some point during his lifetime, assuming that current incarceration rates remain unchanged. This rate climbs to 1 in 6 (or 17.2%) for Hispanic men. For African-American men, the rate of expected incarceration rises to 1 in 3 (or 32.2%). Based on a state-by-state examination of incarceration rates in 2005, African-Americans were incarcerated at a rate 5.6 times higher than Whites, and 7 states had a Black-to-White ration of incarceration that was 10 to 1. In 2010, Black men had an imprisonment rate that was nearly 7 times higher than White men and almost 3 times higher than Hispanic men.
National data, such as that cited above, supports a finding that criminal record exclusions have a disparate impact on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate impact charges.”
Accordingly, the EEOC mandates that employers disregard their own risk in favor of quota-driven sociological data.
And some wonder why we haven’t seen a jobs recovery under Obama, even though the last recession ended all the way back in June 2009?
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