EEOC Protected Classes

Eileen F. Toplansky, American Thinker, Dec. 27, 2012

On September 19, 2012, the Newark, New Jersey Municipal Council passed Ordinance 12-1630, “which limits employers’ ability to conduct criminal background checks.” The ordinance went into effect November 18, 2012 and “prevents employers with five or more employees who do business, employ persons or take applications for employment in the City of Newark, from asking applicants about their criminal history.”

The employer “can only perform the background check after a conditional offer has been made and the employer makes a ‘good faith determination’ that the job position is of a sensitive nature.” Sensitive nature is, however, not defined. In fact, if an employer is permitted to make a criminal history inquiry in connection with any employment decision, the employer first must provide the individual with written notice. The notice must advise: (1) that the employer will conduct the criminal history inquiry upon the written consent of the individual; and (2) if any adverse employment decision is made as a result of the information, the individual will have an opportunity to present rebuttal evidence.

According to a Society for Human Resource Management (SHRM) briefing submitted to the U.S. Commission on Civil Rights by Jonathan A. Segal asserts that

HR professionals are charged with ensuring that each individual hired possesses the talent, skills, and work ethic needed for the organization’s success. The consequences of making a poor hiring choice can be great, possibly leading to financial losses, an unsafe work environment, and, if the employee engages in severe misconduct, legal liability to customers, shareholders or other employees in the form of a negligent hiring lawsuit or other legal claims.

Thus, “employers typically run a credit check, for example, on only those finalists for positions that involve money-handling or other fiduciary responsibility.” In fact, “many state laws require the use of criminal background checks for certain industries to maintain their licenses.” These would include health care and child care positions. Asking a potential employee’s previous employer often results in a less than accurate assessment because “employers can face claims made by the former employees themselves (in the form of a defamation or retaliation lawsuit).” That is why “many employers use the services of a background check company in an attempt to obtain the most accurate and complete picture of the potential employee.”

In light of the Newark restriction concerning criminal background checks, the following must be considered to assess the prudence of this latest Ordinance.

• If a landlord hires someone to fix problems in apartments, that individual now has access to all apartments. Consider if an applicant has a recent rape conviction but no background check has been permitted.

• The National Retail Security Survey estimates that “the U.S. retail industry lost more than $34 billion in 2011 as a result of employee theft. Why shouldn’t an employer, especially in Newark, NJ, have the ability to do a pre-employment background check and not “after a conditional offer has been made?”

• In fact, according to SHRM’s own survey, “having a criminal record is not an automatic bar to employment.” But if “adverse information is found as a result of the criminal background check, 58% of the SHRM respondents indicated that they give the candidate the opportunity to explain the circumstances before the job decision to hire or not to hire is made. In fact, in April 2012, EEOC had already updated guidance for employers to avoid discrimination when using criminal history information.

Furthermore, under the federal Fair Credit Reporting Act (FCRA) “an employer that uses a third party provider in the background process must notify the potential employee in advance of the process and obtain the applicant’s written approval to have his or her background checked by the provider.” So what has changed?

Unsurprisingly, there is now a “new Summary of Rights in the FCRA that employers will need to begin using starting January 1, 2013 giving further credence to the difficulties that employers face when hiring new employees. The result is increasing paperwork and cost to the employers.

Increasingly, employers find themselves “between a rock and a hard place — between losing their state license or opening themselves up to liability if they do not comply with a state law mandating criminal background checks and risking a class action lawsuit if they go forward with criminal background checks and base hiring decisions on the results.”

Moreover, if the EEOC claims that “criminal record exclusions have a disparate impact based on race and national origin” why should an employer suffer the consequences of faulty decisions made by individuals? Why is the shift of responsible decision-making always falling on employers with the concomitant financial burdens, burgeoning paperwork and litigation worries? And more importantly, is there a disproportionate amount of crime among a certain group, and, if so, why? And how can it be reduced?

The EEOC has also weighed in on the possibility that “employees who are victims of domestic violence, dating violence, sexual assault or stalking” would come under Title VII and the ADA. Thus, “potential employment discrimination and retaliation against these individuals… may trigger protection under Title VII or the ADA. Consequently, an employer “may have to reassign a domestic violence victim to another position at another office location if the victim develops depression that is exacerbated by working in close proximity to her attacker.”

And in Macy v. Holder the EEOC “adopted the position that employment discrimination against transgender individuals is a form of sex discrimination under Title VII [.]” How would this be factored concerning weight limits for lifting or carrying packages? What happens if a person is undergoing surgery over a period of time? Will a company need to construct a separate bathroom facility to accommodate the individual before the surgery is completed?

Almost one year ago, the Washington Times wrote about how “EEOC undermines job creation” with the news that the Equal Employment Opportunity Commission (EEOC) was considering that “requiring a high school diploma for a job can be an illegal act of discrimination.” EEOC’s reasoning was that “[p]eople with learning disabilities who don’t obtain diplomas face discrimination if businesses use the diploma as a way to screen job applicants.”

HR Law Matters emphasizes that “EEOC’s continued focus on aggressively litigating systemic charges of discrimination is not good news for employers” as the “EEOC is very interested in evaluating hiring decisions using a disparate impact theory.” Thus, “if the demographics of the employer’s community show minority candidates were available for work but they did not apply for the available positions, the EEOC’s question for those employers will be: Why were you not able to find the qualified minority candidates for the available work?”

It is a “damned if you do and damned if you don’t” predicament for employers — who themselves should be considered a “protected class” given the battering they receive from the federal government. This assault will now multiply and increase with the re-election of Barack Obama.

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  • MekongDelta69

    EEOC Not Protected List – Straight white conservative Christian and Jewish male American tax paying non-felon legal citizens (and Veterans).

    EEOC Protected List – Every other living (and non-living) being and thing on the planet.

    • As far as veterans go, most government jobs do provide veterans preference to both disabled and non disabled veterans.

      • MekongDelta69

        Not when we got out! We didn’t even get to sit in the back of the bus….

        • The__Bobster

          They do now. “Vet” is the new black.

          • MekongDelta69

            Then you can count me out of the ‘new black’ group.

            I’ve always made my own way through life – and I always will.

          • EndTimesComing

            Is there something wrong with giving vets who have shed their blood for their country a little extra priority for Government jobs? The policy grew out of WWII vets returning home from war and finding that all jobs had been filled by chairborne warriors and women. The vet preference only applies to civil service jobs. Wouldn’t you rather have patriotic veterans in civil service jobs than worthless blacks with criminal histories and lousy credit? Wouldn’t vets be better than liberals whom have NEVER cared much for this country? Civilian employers tended to discriminate against Vietnam Vets believing the liberal propaganda that they were all drug users and baby killers. Lest you think that’s a thing of the past, recall Homeland Security has deemed current returning veterans “domestic terrorist” threats and have actually warned civilian police that current returning vets are threats to peace and likely potential domestic terrorists. If ANYBODY deserves a leg up as to education and civil service jobs it is those who volunteered to serve their country in times of danger. Not people chosen by skin color, illegal entry in to the country, political affiliation, or nepotism.

          • You hear and read “military veteran” and think of a young white man coming back from a few tours of active combat on the other side of the world. In reality, more and more “vets” are little more than black cooks, mop floppers and equal opportunity bureaucrats that sometimes wear camos who barely ever left their domestic military base. And also, more and more Hispanic gang bangers who go into the military to get the training to bring back to the street homeys.

        • anarchyst

          That was my experience too. When I got back from Vietnam, I attempted to obtain federal employment but was never successful, despite havig the qualifications. Oh well . . .

        • Luca

          I could have filed for the 5-pts preference for Viet vet status when I applied for my Gov’t job back in 1980. I never did it and I am glad. All I wanted was a chance based on merit.

    • Non Humans

      Well under those definitions, I would be going to the pound and “Hiring” a bunch of needy dogs. They will be more productive and less destructive than any non-humans being forced down these business owners’ collective throats.
      They would have better hygiene too.

  • Newark, New Jersey? Someone ask Cory Booker about this.

    Of course race is the white elephant in the room.

    • MekongDelta69

      Of COURSE you meant to say, “black elephant” – right?

      Good – I wouldn’t want to have to turn you in to the EEOC for harassing the perpetually offended. 😉


        (That’s not a real website)

        Just because you disallow asking about felony sheets doesn’t mean it won’t be hard for the personnel people (I refuse to use that stupid dehumanizing term “human resources”) to deduce it, from those curious several year long “gaps” in the ole resume, and also that even if a convicted black felon wasn’t convicted of a felony, that he or she would really worth hiring to begin with. I guess the geniuses that run Newark assume that the black felons of Newark are eminently qualified to do anything, except some piddly little line item on an NCIC form stands in their way of their tickets getting punched. When in reality we all know that a given black felon wasn’t exactly on the Goldman Sachs track even before the felony.

        Even if personnel can’t deduce it, or tell just from the countenance of the applicant, they’ll have ways through back channels to confirm, and I’m sure Federal law protects their ability to confirm. Except guess who runs “Federal law” now, Eric “My People” Holder.

        Question: What of firearm background checks, Mr. Cory Booker?

        • libssuck

          Good point. The liberals and blacks say the background check on firearms harms blacks.

  • falsedawn

    Ah yes, the eeoc. a bunch of bums if there ever were any…

  • What is wrong with potential employers conducting a background check on prospective employees? If I ran a store, I would not want a convicted thief running my cash register. If I owned a pharmacy, I would not want a drug addict working there.

    • Ulick

      “What is wrong with potential employers conducting a background check on prospective employees?”
      Under current Liberal dogma, the problem is that a criminal background check reflects that a disparate number of minority candidates have a criminal record in comparison to white candidates. Due to this disparate impact on minorities who willfully engaged in crime we must not show candidates that there are reprecussions for a life of crime, but we must instead lower the standard for employment. Welcome to America!

      • I have no problems with those people with a criminal that have cleaned up their lives and have had their civil rights restored. But why should I hire someone that I know is going to steal from me?

        • Oil Can Harry

          Crystal, the black “community” doesn’t give a damn about the safety or wellbeing of you or any other entrepreneurs.

          They do however care deeply about thugs, gangbangers and ex-cons, what Eric (the with)Holder calls “my people”.

          • liberalsuck

            Then they shouldn’t be surprised as more and more companies leave the US and go to countries where they don’t have all these regulations and stupid ‘anti discrimination’ laws to begin with.

        • Liberalsuck

          That’s not the point. Why should an employer be forced to hire people he/she does not want to? Irrelevant if they have changed or not.

      • Non Humans

        That Disparate Impact Bullshit that Usurper is pushing is blatantly criminal. It’s on par with Imminent Domain, but worse. ID hits like a bombshell, takes a chunk and is done. DI will be like a highly contagious virus and spread like one.
        DI is the non-humans brand new cry of RAAAYCISM, straight from the top of BRA. I can hear it now when the non-humans get slighted, “Dat beez Dipardates Impakkins!!

    • Svigor

      “Disparate impack is RACISS!!!”

    • liberaalsuck

      Because it gives (white) employers control over who they hire, who they do business with and because the criminals are most often black. That’s why. Next question.

    • Michael_C_Scott

      Would you want a chemical engineer with 79 US and foreign patents awarded and a four-count federal felony conviction he got when he realized he was being cheated and blew up, if you were running an engineering firm, or would you demand results while continually being dishonest with him?

      For my own part, I expect 100% honesty from employers, or I will not work at all, let alone in my old field.

  • Natassia

    Surprise surprise. Take a look at the folks on the Newark City Council:

    • HadEnough

      The Negroes looking after their own, as usual. Will the last business to leave Newark please turn out the light?

      • liberalsuck

        When white people–especially our white men–finally grow some f—ing balls, take a stand and defy all these “anti discrimination laws” which do nothing but cost them business and drain their children and grandchildrens’ inheritance? When are white men going to fight these people invading our countries and tearing our infrastructure apart? When will whites finally get pissed off enough to push back? When will they stop asking for permission?

  • The__Bobster

    I’m not surprised. The same thing happened in Philly recently, another chocolate City. If such a city excludes felons, the hiring pool shrinks dramatically.

  • Howard W. Campbell

    To get around this requirement, I wonder how many smart business owners (of those left in Newark) will demand an exact accounting of time at previous jobs worked? (That sort of time management tracking might be considered too “White”.) Or will they quietly use the services of a third part provider to do background checks that cannot be traced to the business? If this ordnance was cooked up by the members of the Newark City Council; there has to be a way to follow it to the letter of the law and have the effect of nullifying the spirit of the law.

    Since this is NJ and you have to play mother may I when it comes to owning a firearm, I wonder when what will happen when the first business that demands proof of your ability to legally purchase a gun. You are basically getting the state police to do your workaround.

    • SLCain

      “To get around this requirement, I wonder how many smart business owners
      (of those left in Newark) will demand an exact accounting of time at
      previous jobs worked? (That sort of time management tracking might be
      considered too “White”.”

      Good idea. Large gaps in time of, say, 2-5 years, might be hard to explain. If they list previous employment in a laundry or license-plate factory, that might give an employer pause. They could also ask for previous residential addresses, I suppose.

      • Employment: 1990 – 1994, Gray Bar Motel

  • EndTimesComing

    NOW do you know why businesses and corporations close plants and businesses and move them overseas? It’s for the same reason whites sell their homes, often at reduced cost, and move away to a neighborhood away from blacks and hispanics. The Governments from cities to Federal are determined to undermine the profit makers and impose unprofitable, criminal and lazy employees on them (we know that means blacks), tax them into bankruptcy to fund the blacks who won’t work, and escape the stupid regulations imposed on them by EEOC, EPA, USDA, etc. Here’s something to blow you mind and make you think – for those of you who are knee-jerk unionists. KNOWING this, and seeing it in operation, WHY is it NO UNION has ever complained about the things driving jobs out of our country. WHY is it they promote and call their members to VOTE FOR the very Party and people who are doing this? WHY did ALL unions endorse Obama. Twice. Are you beginning to figure it out now? The union is no longer your friend, if it ever was. They are the jack booted arm of the Liberal Machine.

    • liberalsuck

      Yep. The taxes are too high here, there are too many regulations here and they don’t want to put up with high-powered ‘civil rights attorneys’ suing them because they didn’t hire unproductive criminals with a chip on their shoulder.

  • Don

    I’m glad I’ll be dead in the next 50 years, America is going to be a DARK and scary place.

    • liberalsuck

      I’m concerned about future whites.

  • APaige

    So according to the EEOC race is a proxy for one having a criminal record. Minorities (Blacks) are more likely to have a criminal record so do not use a background check to find out for sure. Save money on a background check and not hire the black person?

    • Non Humans

      Exactly! The article said it better than I could.
      It’s the “”Individual’s”” faults for making the decisions to commit crimes. If that happens to fall upon the majority of non-humans because it is a facet of their “”Culture””, the businesses hold absolutely zero liability there, and absolutely should be allowed to discriminate against them.
      I was once denied a really good job because I got caught with a meager amount of pot when I was 19, but I didn’t scream RAAAYCISM or run to a lawyer or the media. I simply accepted that I F’d up, that was a consequence of it, and moved on. Which is far more than we will ever be able to expect from non-humans.
      The EEOC is going to put alot more businesses under and out with this BS. I hope that some of the business owners who will be affected by this nonsense are able to mount, file, and win a class-action lawsuit against the EEOC for this nonsense. I know if I were a business owner affected by this, I would spare no breath or expense putting them in their place.
      Absolutely absurd!!

      • liberalusck

        Considering most white businesses haven’t revolted years ago to more and more BS ‘anti-discrimination laws’, what makes you think they’ll defy these new ‘anti discrimination laws’ by refusing to hire ex cons?

        • Non Humans

          One can only hope, man.
          The powder keg will only hold so much and will only tolerate so much packing/pressure before it blows.

  • shattered

    Right. So if you’re a business in Newark you should relocate ASAP unless you want to be forced to hire a lot of people out of jail and prison for stealing.

    • George

      Or lay off enough diversities to get yourself under the five employee exemption…

  • BAW

    No wonder unemployment is so high!

  • Grim Jim

    There is absolutely no point in arguing about any of these insane policies any longer. America CANNOT be restored. The only option for whites is for succession.

    • liberalsuck

      You mean secession. Trust me, it won’t be pretty when/if that happens and white people will have to go through a lot of BS to even get the nerve to collectively do it. These “petitions” on begging and pleading to the same government who is taking away more and more of their freedoms to be free of their tyranny is absurd. You don’t ask permission to leave an abusive relationship. You just leave.

  • KenelmDigby

    Of course, if Newark was majority White, you’d never, ever hear of any such proposal.
    Ex-cons would be continued to be discriminated against – and anyone who’d dared to question this fact would be called a damned fool, or worse, and more or less just laughed out of court. I magine, if you will, someone proposing such a law in cinservative, rural Texas.
    Anyway, the purpose of my postimg is not to debate the rights or wrongs of this move, but the sheer mendacity and hypocrisy that is foisted upon (uncomplaining) White Americans, in the name of ‘anti-racism’. If White ex-cons were sysetematically and routinely discriminated agianst in a mainly White locale, or any locale for that matter, no one, but no one would give a damn, and the discrimination would continue unnoticed and unprotested forever. However, because the ex-cons in Newark are mostly black (and truth be told most black men are ex-cons), somehow an issue that reales to bad character and mistrust becomes a ‘racial’ issue – with all the sreaming, shouting and foot-stamping that implies – and ex-cons somehow become transmogrified into ‘victims’, and the previous morality is inverted.

  • Is this really an issue? Do black men in Newark, be that ex-cons or future ex-cons, even apply for legitimate work?

  • Mariner33

    Corey Booker, new Progressive Crock Star. Like any system, mechanical, economic, social, or otherwise, run by incompetents and mentally disturbed, faulty reasoning and cognitive processes, self destruction is a certainty. Aka suicide. Any industrial engine that does not have a fully functional governor-a speed and load regulator-will eventually overspeed or overload and destroy itself due to the incompetence of its operators. So, it is with other analogies such as pilots and navigators of airplanes and ships that we travel in . We elect these leaders even while they steer us toward the rocks and put us on an inevitable collision with the ground (representing Reality).

    It’s time to divide America between realists/traditionalists/conservatives/constitutionalists and the Marxist/Progressive/Socialist utopian usurpers, who parasitically feed on the productive class.

  • Michael_C_Scott

    Nothing at all is wrong with private background checks. I used to work as a research chemist in the microelectronics industry, and have something like 79 US and foreign patents awarded.

    There’s nothing wrong at all that another civil war won’t fix.

  • FourFooted_Messiah

    The thing is, here in Canada, yeah, Canadians are subject to background checks – if you have even one question mark comes back, it can cost you your job. Then they will hire an immigrant … who comes back clean on a Canadian criminal record check. Yet, given the way family class immigration works, that person could have been a huge criminal in his country of origin. So a Canadian convicted of, say, simple possession of a bit of pot, or who was caught shoplifting a pen or something, loses his job to a guy who may have committed murder in another country, or some Muslim with a 6 year old wife hidden somewhere.

    Not saying that background checks are wrong, just that they don’t really work as they should.