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Banning All Convicts Is Race Discrimination, Say Bureaucrats Gone Wild

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.

The news is catching small business owners by surprise. The New York Times reports:

But to judge from conversations with business owners, labor lawyers and human resources consultants, many small businesses had no idea there was anything wrong with practices like a blanket ban on hiring anybody with a criminal record.

“Many companies that size don’t have an H.R. person and get minimal education about compliance issues,” said Laurence E. Stuart, a labor lawyer in Houston. Similarly, Brian Hamilton, who with his wife owns four car dealerships in Nebraska that employ about 160 people, said, “We have tests that all of our managers take that keep them up to date on labor rules. But I was not aware of that one.”

The EEOC defends its reasoning by pointing to racial disparities in conviction rates:

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.

Via Meadia believes in second chances, but there are plenty of jobs where an employer would have some very practical reasons not to hire an ex-convict. What retailer in its right mind would hire convicted thieves? Shouldn’t a small business owner with many female employees and customers be concerned about hiring a convicted rapist? But according to the EEOC, if you live in an area where more minorities are convicted of crimes, your blanket ban on hiring them is in effect discriminatory.

Of course, if you comply and do hire criminals who then go on to assault or burgle your clients, and they or their insurance companies find out you either knew the employee had been convicted or didn’t do the due diligence, then you are likely to get hit with a big negligence lawsuit. Will the EEOC pay for your lawyer? Or pay any damages you are assessed?

And, as the Times piece notes, most small businesses (the rule applies to anyone with more than 15 employees) don’t actually have the means to keep track of the endless proliferation of idiotic regulations from overzealous bureaucrats without enough adult supervision. This regulation is a gift to trial lawyers everywhere, and a barrier to small business development and growth.

There are a lot of ways to help ex-cons get a new start in life, and employers can be encouraged to identify people who have earned another chance. But this particular regulation just makes life harder for the struggling small businesses on which the future of our common welfare depends. [UPDATED]

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  • Mrs. Davis

    Or this. These people are either divorced from reality or wish to destroy our economy and I’m beginning to believe either is equally likely to be true.

  •!/suhrmesa Suhr Mesa

    The Democrat Party is driving by client groups that expect preferential treatment in exchange for votes.

    EEOC and the clownish recent “equal pay for women” bill are all about the trial lawyer client group.

    The Dems have become season 6 of “The Wire”

  • KFJ

    Gee, if ex-cons don’t want to be discriminated against, maybe they shouldn’t, you know, commit their crimes in the first place.

  • Evilpa

    I will not comply!

  • Emerson

    Years ago i read a British coffee shop was in trouble for an employment ad that stated they were looking for smiling, friendly people. As if that discriminated against suicidal emo losers.

  • Corlyss

    Outrageous decision. I can’t wait for a new administration.

  • Corlyss

    Mrs. Davis,

    Here’s the deal: after we crushed the Soviet Union’s economic model, we decided maybe it didn’t have a fair chance, the Russians not being “nice people,” and we should give it another chance with people who really, really, really care.

  • Mick The Reactionary

    Disparate impact is the law or treated as law by the rulers.

    There is no need to prove actual discrimination, only that a hiring rule has disproportionate impact on minorities (apparently it is A-OK to step on whites).
    Blacks commit crimes 5-8 times more often then whites, Hispanics 3-6 times.

    Therefore it is a straight forward application of Disparate Impact logic to see that not hiring ex-cons is damaging to minorities as compare to whites.

    Therefore it is not allowed.

    There is no other choice.

    Either remove Disparate Impact rules/laws (preferable) or you will forever get nonsensical results as this one.

    I noticed that the Prof did not say if he supports Disparate Impact rule.

  • JKB

    To be fair to the small business owners, about 5 years ago, I asked my HR tech point blank if I could not hire someone who had criminal convictions and they didn’t know.

    But this was the federal government and we only hired about 10 or so people every month. Many with “colorful” backgrounds.

  • BT

    A tight labor market – one that actually enforced the laws against hiring illegals, cut down on the work visas, etc – would help ex-cons, but we don’t want to think about that.

  • Walter Sobchak

    The Federal Government is at war with itself. DEA wants to throw drug users in jail. EEOC want you to hold DEA’s work to be a joke. Innocent businesses are in the middle. The only possible effect is to throw another spanner into small business hiring.

    Another example of this effect was on Fox news tonight. EPA is threatening to fine gasoline retailers because they are not purchasing ethanol derived from wood and plant waste (as opposed to corn) to add to their gasoline in the amounts that Congress ordered them too.

    The problem is that nobody is making that product. Well, guess who will be paying the fines? If you did not answer the customers, you are an idiot.

    The Federal Government needs to drop everything that it is doing and to decide on what its policies and priorities are.

  • MichaelM

    A great many ex-cons — including those who are members of ‘some’ minority groups who are more likely to be arrested — are convicted of completely victimless crimes which wouldn’t effect their work performance if they had remained un-caught at all.

    The whole idea behind ‘guaranteed outcomes’ is wrong-headed and can only lead to some extremely bad places, but then again, the idea of blanket bans on hiring ex-cons when the War on Drugs and other law enforcement sprees that target innocent citizens are on-going is kind of bad, too.

    This is a case where both big sides of the issue are wrong and the victim is the little guy who doesn’t have much control over anything in his own life, let alone in the lives of others like the big dogs.

  • Tom T.

    How might this affect organizations like state bar associations, which generally refuse to let convicted criminals into the profession?

  • JamesG

    We have a non-democratic government.

    Sure we vote for representatives who pass the laws but interpretation of and the enforcement of the laws is handled by non-elected bureaucrats.

    It’s never the laws it’s the regulations that are used to impose dictatorship by “govbots”.

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