The New Protected Class: Felons
Brace yourself: the EEOC (Equal Employment Opportunity Commission) is moving aggressively to protect . . . ex-cons.
The EEOC has announced that an employer's refusal to hire workers based on criminal records or credit problems can be illegal "if it has a disparate impact on racial minorities." The problem is that, according to Justice Department statistics, in 2008, African-Americans were about six times more likely to be incarcerated than whites. The incarceration rate for Latinos was 2.3 times higher than whites. Ergo, screening out ex-cons is presumptively suspect.
Any employers out there? Can you confirm that your background checks are really just an excuse to weed out minorities? Or is it possible -- just possible -- that this is another case of identity politics gone mad?
Years ago, U.S. District Judge Jose Gonzalez threw out a similar claim by the EEOC, saying: If applicants "do not wish to be discriminated against because they have been convicted of theft, then they should stop stealing." (As reported by Walter Olson, who spotted this trend years ago).
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Jun '10
Re: The New Protected Class: Felons
The corollary would then be that criminal nature is an ethnic attribute, not a character attribute. That's the only conclusion you can draw from it. So, who's the racist?
Jun '10
Re: The New Protected Class: Felons
Adam: the link attached to the word "announced" isn't working -- returning "Invalid Web Address"
Re: The New Protected Class: Felons
etoil: I was going to make that point, but frankly I was afraid of getting hauled away by the secret police.
Pilgrim: Sorry about the link! It is here; the full URL is here http://www.law.com/jsp/article.jsp?id=1202465597808&rss=newswire
Ricochet SWAT Team: can you fix the link?
Jul '10
Re: The New Protected Class: Felons
Silly me. And here I thought the point was to disincentivize crime.
Jun '10
Re: The New Protected Class: Felons
Good headline but I don't see this raising *felons* as a new protected class --just as recognizing another trait that is disproportionate in the exisiting protected class(es). If some protected class applicants for employment have a substandard education, poor work history, lousy credit discipline, and now a history of criminal activity you just have to market and price the position so that you have enough applicants of the same ethnicity, gender etc to get your numbers right without having to dip into that pool. If that fails, you will spend gazillions trying to defend the these traits as inconsistent with job performance, but only if you can't off-shore or out-source the work.
Jul '10
Re: The New Protected Class: Felons
Thinking about this, one of the things that really gets me about this is the way it shifts the burden of proof from the applicant to the employer. The employer now needs to demonstrate a specific reason why it doesn't want to hire a criminal, rather than the applicant needing to demonstrate why their conviction was a minor, or one-time thing, or that they have successfully rehabilitated.
The bedrock of anti-discrimination law was that you cannot judge someone's fitness by their color, race, religion, or creed. Now, it seems, you can't even judge them by their behavior.
And etoile has the "ethnicity" angle nailed perfectly. Do these people ever listen to themselves?
Re: The New Protected Class: Felons
Bingo. The upshot is that the employer now has to convince a hearing panel or a court that an applicant's criminal conviction was sufficiently "relevant" to the job.
I don't know, Pilgrim. I think that an individual could challenge a company's practice of screening applicants for having a "disparate impact" even if that individual isn't otherwise in a protected class. But even if that were not the case, I think the practical effect is to privilege ex-cons because this will have a chilling effect on employers relying on criminal records to screen applicants.
Jul '10
Re: The New Protected Class: Felons
We do background checks mainly to protect ourselves from tort claims. If we hire a felon and he assaults another employee or a customer, they sue us. It's quite common these days. And the jury awards can be staggering.
I'm sometimes willing to overlook non-violent drug offenses, all other things being equal, because it disturbs me that our "war on drugs" is creating a permanent underclass of guys who made some awful choices early in life.
Edited on Sep 9, 2010 at 6:06pmRe: The New Protected Class: Felons
Great find, Adam. This whole "disparate impact" thing is lunacy of the first order. If there were only some way to get this to sink in with the average voter -- that this is what the identity politics of the Left ultimately leads to -- I think the Democrats would become a tiny fringe party faster than you could say "Eric Holder."
May '10
Re: The New Protected Class: Felons
And the most significant impact of these added burdens will be to disincentivize the hiring of anyone--felons or not--particularly low-skilled, entry-level anyones. Make do with less--that's the message. Kinda like every other message they've sent.
9.6% and counting. No clue.
Jul '10
Re: The New Protected Class: Felons
Having taught labor law to hundreds of businesspeople, I can tell you that trying to explain "disparate impact" immediately puts them to sleep.
They can understand "prima facie" discrimination: sorry, we don't hire blacks.
But disparate impact is such a tortured construct they literally tune out. Which is exactly what the bureaucrats at the EEOC - who cooked up the concept - intended.
The Supreme Court declared the concept of "disparate impact" to be unconstitutional in 1989.
The spineless George H.W. Bush re-instated it in his Civil Rights Act of 1991.
The Supreme Court over-ruled it again.
And then, in an historic measure, Congress invoked Article III to over-rule the Supreme Court.
George H.W. Bush was much more of a disaster than most people realize.
Aug '10
Re: The New Protected Class: Felons
You want a new protected class ?
Try black muslim convert ex-cons. It's a trifecta !