Obama’s Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory. In 2012, the EEOC issued “guidance” to the nation’s businesses, citing statistics showing blacks and Hispanics are convicted of crimes at significantly higher rates than whites. Therefore, the EEOC ruled, excluding job applicants based on their criminal records would have “a disparate impact based on race and national origin.”
The EEOC did not say past felonies could never be considered in job applications. But the guidance made clear that an employer who chooses not to hire a felon could have to present a detailed defense to the EEOC. “The employer needs to … effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position,” the guidance said. Employers who cannot prove to the EEOC’s satisfaction that excluding a felon from a particular job is a “business necessity” could be in trouble. And whatever the outcome, the company could have its hands full with a costly lawsuit from the government.
“One bright-line policy you should not adopt is having a no-felons policy,” EEOC commissioner Victoria Lipnic told the U.S. Chamber of Commerce in a March 2012 speech. “If you have that policy, that’s going to be a problem if you’re subject to an EEOC investigation.”
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they’ll be in trouble if they don’t hire convicted felons?
Of course a business, after a background check, might well choose to hire a felon. But that is the employer’s decision — not the Obama administration’s.
This was an op-ed about an Obama nominee (whose nomination is now squelched), but the policy itself seems to be a real policy (http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm).
Screen for felony convictions, and you may be sued. That’s an actual warning to American employers, courtesy of the Obama EEOC.
What a horrible burden to put on businesses. It’s almost as if Obama wants to drive everyone out of business.
The Texas suit alleges that the EEOC’s guidelines on employers’ use of criminal history effectively intrudes on the State of Texas’ “sovereign right to impose categorical bans on the hiring of criminals.”
Specifically, the complaint alleges that the EEOC’s 2012 guidelines would serve to force Texas employers to hire felons under threat of disparate impact investigations and suits prompted by the EEOC.
Currently the Texas Department of Public Safety (DPS) has an absolute ban on hiring felons to become law enforcement agents, one that is supported by Texas law, but may violate the EEOC’s guidelines.
The parade of horribles caused by following the EEOC’s authority includes hiring felons as “[t]roopers, jailers, and school teachers.” In the alternative, ignoring the EEOC’s guidance would risk a hellstorm of Title VII disparate impact investigations, a significant burden even if the investigation is found to be frivolous.