Political Correctness at the Expense of Safety: should businesses be forced to ignore criminal records?

Walter Russell Mead writes on his blog,

Hiring managers take note: The Equal Employment Opportunity Commission (EEOC) has announced that it will more aggressively enforce rules prohbiting hiring bias against applicants with criminal histories. Under the new enforcement guidelines, companies that don’t hire people with criminal records (regardless of race) can be sued for discrimination.

Mead is commenting on a story in the New York Times that describes the general ignorance among small business owners of longstanding policy in this area.

The notion that using criminal records in employment decisions could constitute discrimination has been government policy since at least the 1970s. The E.E.O.C. has in the past issued policy statements, called enforcement guidance, about how employers may use criminal records without running afoul of the Civil Rights Act, but in April the agency published new enforcement guidance.

To be sure, on its face the EEOC’s policy makes sense.

[L]abor lawyers say the new policy requires companies to establish procedures to show they are not using criminal records to discriminate by race or national origin.

The landmark Civil Rights Act, passed in 1964 and expanded over the years, protects people from racial, ethnic and other kinds of discrimination in a variety of settings, including at work.

Employment discrimination provisions of the act apply to companies with more than 15 employees and define two broad types of discrimination, disparate treatment and disparate impact. Disparate treatment is fairly straightforward: It is illegal to treat someone differently on the basis of race or national origin.

But what happens when the policy is applied even in cases of unintentional racism, or “disparate impact”?

Disparate impact is more complicated. It essentially means that practices that disproportionately harm racial or ethnic groups protected by the law can be considered discriminatory even if there is no obvious intent to discriminate. In fact, according to the guidance, “evidence of a racially balanced work force will not be enough to disprove disparate impact.”

As the E.E.O.C. establishes in its guidance, members of some minority groups are much more likely to be arrested and convicted than whites. From the commission’s perspective, the Civil Rights Act serves to make certain that disparity is not compounded in the workplace.

To be sure, the guidelines do seek to allow businesses to take some common sense steps to ensure that an individual’s criminal record does not impair his or her ability to perform a job or threaten the business or its employees in some way. In that sense, Mead’s worries about the law seem a little excessive.

But the guidelines seem awfully nannyish for a country committed to economic freedom.

Even if an employer develops a job-related and business-necessary rationale for excluding some criminal convictions, the exclusion could still be considered discriminatory if there is a less discriminatory alternative that would achieve the same result. For example, Mr. Stuart said, an employer that has a legitimate reason to exclude convicted drug criminals could presumably achieve the same result by screening job candidates with drug tests.

The guidance specifically discourages employers from asking about criminal history on an application, and Mr. Stuart said that he was telling his clients that to avoid a fight, they should wait to ask about criminal convictions “until they have determined that the person is qualified and in the pool of people who would be offered a job.”

Seems like a scenario for all sorts of lawsuits and discrimination claims if you ask me. The burden clearly falls on an employer, not on an individual with a criminal record. To be sure, our country has a history that demonstrates a need for this kind of legislation. But to what extent should past history define current policy? Disparate impact seems to denote just the sort of social engineering that is appropriate to a nanny state guided by academic elites and socially minded do-gooders who want to tell everyone else exactly what justice and responsibility should mean in their lives. It is hardly the right balance for a free country.


About Matthew J. Tuininga

Matthew J. Tuininga is the Assistant Professor of Moral Theology at Calvin Theological Seminary in Grand Rapids, Michigan.

Posted on June 23, 2012, in Jobs and tagged , , , , . Bookmark the permalink. Comments Off on Political Correctness at the Expense of Safety: should businesses be forced to ignore criminal records?.

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