March 5, 2013Can the government force firms to employ convicted criminals just because they are minorities?
My column for Defining Ideas last week stressed that antidiscrimination laws can wreak havoc on job creation. The Equal Opportunity Employment Commission, a federal agency tasked with enforcing antidiscrimination laws, has demonstrated just how destructive such laws can be. One instance of its folly is its “Enforcement Guidance” of April 2012, which has come to prominence after recent public hearings before the U.S. Commission on Civil Rights.
With the Enforcement Guidance, all private employers and all state employers must use detailed and particularized inquiries before turning down a minority applicant who has a criminal arrest or conviction on his record, even though employers can turn down a white applicant with the same past record without going through such hoops.
An Upside Down Civil Rights Case
To the unpracticed eye, the EEOC ruling looks genuinely perverse. The law that was intended to end discrimination by private parties now institutionalizes it by government. Title VII of the 1964 Civil Rights Act has, as its purpose, to make it “an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual…because of such individual’s race, color, religion, sex, or national origin.”[More]
The idea that makes the U.S. Equal Employment Opportunity Commission (EEOC) try to make businesses hire criminals is "disparate impact" law, dating back to Griggs v. Duke Power.
The EEOC thinks that people are saying they don't want to hire criminals because they don't want to hire minorities. However, this is backwards. To the extent that employers genuinely don't want to hire minorities, it's because they are worried that they may be criminals.
If employers are not allowed to run background checks, they'll probably seek other ways to avoid hiring minorities, such as importing workers from Thailand.
