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Destroying Freedom in the Name of Equal Opportunity

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The Obama administration is finding new ways to use civil-rights laws to attack freedom and common sense. The Equal Employment Opportunity Commission (EEOC) last year issued a byzantine “enforcement guidance” to browbeat businesses into ceasing to conduct criminal-background checks on job applicants. The agency’s edict will chill hiring and spur a backlash across the nation.

The 1964 Civil Rights Act created the EEOC. The agency soon began contradicting the law that had created it. The 1964 act explicitly banned racial quotas and specifically required that an employer show an intent to discriminate in order to be found guilty. Sen. Hubert Humphrey, the majority leader in the U.S. Senate, declared, “The express requirement of intent is designed to make it wholly clear that inadvertent or accidental discriminations will not violate the title or result in entry or court orders. It means simply that the respondent must have intended to discriminate.”

However, by the late 1960s the EEOC had sabotaged the law by establishing a definition of discrimination far wider than Congress had authorized. EEOC chairman Clifford Alexander announced in 1968, “We … here at EEOC believe in numbers…. Our most valid standard is in numbers…. The only accomplishment is when we look at all those numbers and see a vast improvement in the picture.” Hugh Davis Graham, in his history The Civil Rights Era, noted of the EEOC’s early top staff, “As the infant EEOC’s brains trust, they began the process of maximizing agency power by subverting the congressional restrictions [on agency power].… By the end of the Johnson Administration the EEOC, by its own self-description, was disregarding Title VII’s intent requirement.”

By the late 1970s the EEOC began stretching Title VII of the 1964 Civil Rights Act to sue businesses for practically any hiring practice that adversely affected minorities. Judges sometimes rebuffed EEOC’s perverse interpretations of civil- rights law, but the agency continually found new pretexts to seize new powers.

The EEOC’s new “enforcement guidance” was spurred by hard facts on hard crimes. Though blacks make up only 13 percent of the U.S. population, more blacks were arrested nationwide for robbery, murder, and manslaughter in 2009 than whites, according to the FBI. The imprisonment rate for black men “was nearly 7 times higher than White men and almost 3 times higher than Hispanic men,” notes the EEOC. Regardless of the crime differentials between different groups, the EEOC talks about the prevalence of criminal records as if it were a near-random event. And since some groups are hit harder by those random occurrences, the EEOC is obliged to forcibly intervene to protect them from “bias.”

The EEOC uncorked more than 20,000 tangled words to sway businesses to forgo criminal-background checks on job applicants. Even though most businesses perform criminal-background checks on job applicants, 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.”

If a background check discloses a criminal offense, the EEOC expects a company to do an intricate “individualized assessment” that will somehow prove that it has a “business necessity” not to hire the ex-offender (or that his offense disqualifies him for a specific job). Former EEOC general counsel Don Livingston warns that under the new rules, “Employers commit race discrimination if they choose law- abiding applicants over applicants with criminal convictions unless the employer goes through a highly subjective decision-making process that involves the collection of information and weighing of multiple factors, including the individual’s particular circumstances, education and training post-conviction, length and consistency of employment history, and character references.” The EEOC provided little or no guidance on how to prove that not hiring a criminal offender is “consistent with business necessity” or a specific job’s requirements.

It is difficult to overstate the EEOC’s zealotry on this issue. The agency is demanding that one of Livingston’s clients — the Freeman Companies, a convention and corporate-events planner — pay compensation to rejected job applicants who lied about their criminal records.

Catch-22

The biggest bombshell in the new guidance is that businesses that comply with state or local laws requiring employee background checks can still be targeted for EEOC vendettas. This is a key issue in a case the EEOC commenced in 2010 against G4S Secure Solutions (formerly Wackenhut) after it refused to hire a twice-convicted Pennsylvanian thief as a security guard. The EEOC continually broadened its demands to the point where “we are now being asked to defend the use of criminal-background checks in every hiring decision we have made over a period of decades,” G4S general counsel Julie Payne testified to the Civil Rights Commission in December. G4S provides guards for nuclear power plants, chemical plants, government buildings, and other sensitive sites and is prohibited by state law from hiring people with felony convictions as security officers. But the EEOC insists “that state and local laws are preempted by Title VII,” Payne complains.

The EEOC’s new regime leaves businesses in a Catch-22. National Small Business Association president Todd McCracken complained, “State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.” Naturally, the EEOC will have no liability for any violent rampages that result from its new hiring policy.

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. 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 forego 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.”

The EEOC refuses to look beyond the groups that its intervention supposedly 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. But the EEOC ignores the victims that will be created when companies bow to federal pressure and add violent employees to their payroll.

The EEOC’s attempt to punish businesses for checking criminal records is already playing out in courtrooms across the nation. In a Maryland case, the lawyer for the Freeman Company 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 believes are necessary to incarnate its vision of “equal opportunity.”

The EEOC also refuses to disclose whether it uses criminal-background checks for its own hiring. When EEOC Assistant Legal Counsel Carol Miaskoff was challenged on this point in a recent federal case in Maryland, the agency insisted that revealing its hiring policies would violate the “governmental deliberative-process privilege.” But businesses and individuals never have the prerogative to assert their “deliberative-process privilege” when the EEOC is demanding their personnel and other confidential records.

This latest ploy could harm the majority of black and Hispanic job applicants who have clean legal records. Studies published in the Journal of Law and Economics and University of Chicago Legal Forum found that businesses are much less likely to hire minority applicants when background checks are banned.

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 today unless most members want to get bounced out of office at the next election.

Americans can treat ex-offenders humanely without giving them legal advantages over similar persons who avoided doing time. The EEOC’s new regulatory regime will chill hiring across the board and decrease opportunities for both saints and scofflaws. Maybe members of Congress will take time off from making speeches invoking freedom to actually rein in a federal agency trampling Americans’ rights

This article originally appeared in the June 2013 edition of Future of Freedom.

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    James Bovard serves as policy advisor to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.