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]