Note to the EEOC: “Fairness” Must Not Require The Suspension of Common Sense

In the  rich and annoying category of “Official Statements and Actions That Guarantee The Death Of Affirmative Action,” we have the recent warning by the Equal Employment Opportunity Commission that companies using criminal records to screen out job applicants might run afoul of anti-discrimination laws and be illegal because such a policy would have the effect of disproportionately disqualifying blacks and Hispanics.

According to Justice Department statistics, 38 percent of the U.S. prison population is black, compared with about 12 percent of the general population. In 2008, African-Americans were about six times more likely to be jailed than whites, while the incarceration rate for Hispanics was 2.3 times higher than for whites. If criminal histories are taken into account, the EEOC says employers must also consider the nature of the job, the seriousness of the offense and how long ago it occurred.

Let us get this straight, shall we? If I am presented with five candidates of identical qualifications, except that one of them has a criminal record, I cannot legally determine that on that basis alone, I would prefer to hire one of the four candidates who have so far managed to stay out of jail? Really?


Nonsense. The EEOC’s edict is outrageous, and an abusive intrusion into my autonomy as an employer as well as an assault on responsible hiring, logic, and common sense. It isn’t that the policy of not hiring applicants with a criminal record has a disproportionate impact on blacks and Hispanics; its is that a disproportionate proportion of blacks and Hispanics break the laws and get punished for it. The EEOC is adopting  is a variation the Marion Barry Fallacy, named after Washington, D.C.’s favorite rogue mayor who once suggested that the city’s crime rate wasn’t so bad, really, if you just ignored all those murders.

EEOC Bureaucrat A: “Oh-oh, look at this…the high crime rate among minorities is resulting in too many minority job-seekers being rejected because they spent time in the slammer, especially with so many non-convicts out of work.”

EEOC Bureaucrat B: “That’s an easy one to fix! Let’s just make discriminating in hiring on the basis of a criminal background illegal, because it disproportionately penalizes blacks and Latinos.”

EEOC Bureaucrat A: “Of course! Why didn’t I think of that?”

Maybe because it is insane, not to mention wrong. I can assume, then, that as long as I have a policy that only excludes white ex-cons, that passes the EEOC’s standards? Well?

A report was just released that showed a huge gap between the high school graduation rates of black and white students, with lass than half of all blacks graduating and more than 70% of whites successfully getting their diplomas. You know what this means, don’t you? By the EEOC’s logic, requiring a high school diploma for a job is discriminatory. We haven’t seen that warning yet, but don’t bet against it.

The disparate impact doctrine articulated by the Supreme Court in the 1971 decision of Griggs v. Duke Power Co., 401 U.S. 424, 431-2, was always unjust and counter-productive, placing the accountability and economic burdens for failures of individuals, groups and communities on employers rather than where the real problem was.  Title VII, the Court ruled,

“proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.”

The problem—one of many, actually—is that this standard makes “business necessity” an issue of law that brings federal agencies and the courts into my business. I should have a right to decide that I don’t want to hire former criminals. Period. Ever. Because I don’t trust them. Yes, I admit that there are undoubtedly former criminals who will be wonderful employees, but no  one can deny that between the pool of people who have never been in prison and the pool of job applicants who have, the odds in favor of an employee from the unconvicted group being trustworthy are a lot better than the odds for the ex-cons. I can’t afford to buck the odds, and even if I could, I don’t want to. How dare the EEOC tell me that’s illegal discrimination?

The serious social and economic problems caused by the high crime rates in black and Hispanic communities are not going to be solved by the Bizarro World logic of ruling by ex-criminals are equally qualified for employment as those who abide by the law. The government, through the EEOC, is declaring common sense and accountability illegal rather than doing the hard work of addressing the real problem: too many minorities are breaking the law.

When affirmative action and anti-discrimination measures make discrimination against criminals a form of bigotry, we are nearing the end-game in race-based social engineering.  Laws supporting fairness must be rooted in and consistent with common sense, the one thing the American public has in abundance. Policies like this will rob anti-discrimination regulation, no matter how well-intentioned, of all credibility.

One thought on “Note to the EEOC: “Fairness” Must Not Require The Suspension of Common Sense

  1. There’s also another aspect to this. Race politics is, of course, at the heart of this long standing use of the liberal bureaucracy to court the “minority” vote. But there are other “ethnic equivalents” now to be considered. Sexual deviants are a big one, now. But so are felons.

    In a society where values have become twisted, mocked and discouraged from one’s childhood- educationally, culturally and through the influence of criminal pop/political icons- their numbers have been growing. And criminals, like perverts and radical ethnics, vote Democrat in lockstep. This is why you see such measures being enacted by this unconstitutional entity. It’s also why liberal judges and legislators have increasingly made it easier for felons to vote (some even while still in prison!) despite the once universal prohibition on their voting at all except after a formal pardon.

    This is being done subtly, too. More such outrages will occur as the leftist interest scrambles to bolster their fading power base. In doing so, however, they threaten their base in the long term. Many Americans of African and Latin origin are coming to resent their being lumped in with homosexuals and criminals as an oppressed minority. As are any decent citizens, for that matter.

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