Now Hiring Ex-Cons

Richard Epstein, Hoover Institution, March 5, 2013

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.

{snip}

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.”

Thus, the newest confection out of the EEOC orders most employers to do exactly what the law forbids. It introduces an explicit classification into the hiring equation by imposing a higher standard for refusing to hire minority workers than for others. The Enforcement Guidance also applies even when it is clear that the employer’s refusal to hire certain workers is not because of race but because of the evident risk that a criminal record could present to the employer, its other employees, and its customers.

The EEOC introduces what is termed “disparate treatment” by race in its supposed effort to prevent discrimination. The results are perverse at best. To take just one example, James Bovard, writing in the Wall Street Journal, reports that in 2010, the EEOC initiated litigation against G4S Secure Solutions “after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.” Needless to say, the EEOC did not offer to indemnify G4S should they be held liable for any torts of their employee while on the job.

{snip}

Though the Enforcement Guidance is said not to have any statutory force to it, employers ignore it at their peril. Doing so, after all, could ignite a costly EEOC investigation. The government thus gets full in terrorem effect while bypassing all procedural safeguards. For years, the courts have tolerated this device—the guidance—even though they should have given it no legitimacy.

{snip}

The EEOC’s broad reading of the Civil Rights Act would not be possible without the historical willingness of the Supreme Court to adopt an expansive civil rights theory that reads the “because of” out of Title VII. (As a reminder, the relevant part of the law makes 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.”)

The legislative history makes it painfully clear that in order to overcome political opposition, the Act did nothing to prevent an employer from using whatever tests it liked to select those employees whom it thought best for the job. Indeed the law contained an explicit protection for any employer “to give and to act upon the results of any professionally developed ability test provided that such test, its administration or action upon the results is not designed, intended or used to discriminate because of race…”

Read in sequence, the term “used” works in parallel with “designed” or “intended,” and thus requires a bad state of mind. This statutory language seems to block the selection of a test that has an eye toward getting the preferred racial result. But in the fabled 1971 case of Griggs v. Duke Power Co., a unanimous Supreme Court, speaking through Chief Justice Warren Burger, upset that carefully drawn legislative compromise. It tortured the language of the statute against the entire weight of the legislative history. The vital intent requirement was excised, so that a test was used improperly if it had a disparate impact by race—that is, if the test had a heavier negative effect on one group than the other, even when its use was only intended to sort out the best workers on the job.

Owing to the major differences in education and job history, most tests do have disparate impact by race. Under the Griggs rule, the employer could use that test only if some “business necessity” required its use, and then only if it had a near-perfect predictive power, which virtually no test ever has.

At that point, it was off to the races. We know that tests are valuable because they are used as diagnostic tools. But the protracted effort to get tests that are both predictive and valid has led to inordinate and wasteful expense. What makes the situation inexcusable is that by the early 1980s, no one could credibly claim that the hard look on tests was intended to ferret out conscious discrimination that went below the radar.

Indeed, in the misguided 1982 decision of Connecticut v. Teal, the late Justice William Brennan, speaking for a five-member majority, missed an opportunity to stop this abuse when he insisted that the disparate impact analysis applied to state agencies that had adopted bona fide affirmative action programs, which embodied a form of reverse discrimination. The correct approach in that case would be to let the tests go so as to get the strongest candidates from both groups. Adopt that approach and the scope of employment discrimination law shrinks by ninety percent—the better for everyone.

The EEOC does not see matters that way, so it defends its Enforcement Guidance by explicit reliance on both of these Supreme Court cases. But even if we assume that the Griggs-Teal framework makes sense, the EEOC Enforcement Guidance still comes up short. The factual predicate for the decision rests on the differential conviction rates for African-American and Latino males. More specifically, as of 2010, the EEOC reports, “Black men had an imprisonment rate that was nearly 7 times higher than White men and almost 3 times higher than Hispanic men.”

Note, however, that the Enforcement Guidance does not make any further claim that the differential rates of incarceration were due to any error in the operation of the criminal justice system. At this point, the question should become this: why should persons who received the same treatment inside the criminal justice system now receive different treatment under the antidiscrimination laws?

{snip}

At the end of the day, what good does the EEOC hope to gain from this massive undertaking?

One of the great benefits of a competitive labor market is its self-corrective nature. The correct social question therefore is not whether this or that firm decides to hire a worthy applicant with a criminal record. It is whether any firm makes a positive hiring decision for a worthy candidate; if not, in competitive labor markets, any errors made by one potential employer can be corrected by favorable decisions by another.

Ironically, however, that redundancy is undercut by the EEOC’s uniform Enforcement Guidance. Some studies already suggest that firms are “much less likely to hire minority applicants when background checks are banned.” That result should not come as any surprise. The white male workers who are not protected by Title VII can offer employees this precious guarantee: the ability to hire and fire at will. Minority workers cannot waive their ill-conceived protections under Title VII, and thus are prevented from competing along this critical dimension. The EEOC Guidance may help some minority workers in a few cases, but it will hurt even more.

And by raising transaction costs, the EEOC will continue on its mindless job-killing path. Once again, the EEOC seems utterly oblivious to the harm that it causes to the groups that it most wants to help—and indeed to everyone else.

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  • MekongDelta69

    To the unpracticed eye, the EEOC ruling looks genuinely perverse.

    To any eye, the EEOC ruling looks genuinely perverse.

  • Tom Iron

    Anything the EEOC says or does is no surprise. They will never stop the downward spiral. We look at this stupid ruling and say it’s ridiculous (and it is), but I assure everyone, they have it in tem to come up with something more stupid than this.

    • Michael Harreskov

      Eventual, Eradication, Of, Civilization.

  • To the unpracticed eye, the EEOC ruling looks genuinely perverse.

    To those of us with practiced eyes who can see, this EEOC is genuinely pro-NAM and anti-white, and just another day in BRA and HRA.

    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.

    With strict scrutiny being the standard of judicial review on race, I don’t see how this enforcement guideline can require all these “hoops” relating to non-white ex-cons but not require them relating to white ex-cons.

  • Dr. X

    This is utterly bizarre and perverse. In fact, it’s far worse than the article indicates. While the Government is threatening to sue employers who don’t hire black felons, it is also protecting illegal aliens working with fake papers or working “off the books” from deportation. Meanwhile, it is harder than ever for Whites to get jobs in today’s era of background checks and electronic databases. A White can be denied employment for failing a credit check, a polygraph, an arrest without a conviction, or a past firing. Anything a White said, did, or wrote can disqualify him. Just today, I was filling out a job application and for the first time I saw a question that asked if the applicant was ever convicted of a felony OR of a misdemeanor! Now, I have never been personally arrested nor convicted of a misdemeanor. But suppose I had gotten caught drunkenly urinating behind a bar when I was 18? I’d get disqualified for that 30 years later while the Government encourages hiring black felons. The U.S. Government is the #1 enemy of the White Man.

    • So CAL Snowman

      It’s astonishing is it not? The same federal government that was entrusted to uphold our core values of life, liberty, and the pursuit of happiness, empowered and bequeathed to us by our ancestors, has become our greatest enemy

      • Room101

        Based on race, or the hated-color of your White-taxpaying skin.

      • Joseph

        Right now, it is the white producing class who are in the gummint sights because we represent the overwhelmingly greatest threat to their power. When the white literate gun-totin middle-class has been vanquished these feeling egalitarian frauds will immediately reveal their true agenda and their contempt for these underclasses will be manifest. There will be nothing in the way of true slavery for these selfish dark fools along with the rest of us. Their skin color will no longer be a political advantage.

    • fakeemail

      ANARCHO TYRANNY. It’s easy to enforce unfair laws against law-abiding productive weaklings. It’s hard to enforce laws against born criminals, maniacs, and imbeciles. So why not let the latter terrorize the former while the elite classes remain far, far, FAR on top. Hey, gotta hand it to ’em. The logic is there.

    • Michael_C_Scott

      I lied pretty mercilessly for a while once I was off federal probation and looking for decent work. At the same time, while I was on paper, I said “yes” to the same question when I was expected to look for work, even when I didn’t want a particular job. I filled out in Deutsche Alteschrift several applications using my own blood and a calligraphy pen. In some interviews, I explained that my offense was homonecrobestiality, and in others, I said it was murder.

      Work isn’t all it is cracked up to be. They can go and hire violent black felons; I would rather just stay home with my family.

      The best boss I ever had was at Subway in 2004, and he knew I’d done fed time for extortion. I worked hard because I liked him – sometimes a month with only three days off. I came in after my shift with my own tools and fixed things in the store. I made a whole $6.75 an hour and got to take home condemned meat. It’s just not worth it.

      • Thomas Katt

        Most hiring managers don’t know what homonecrobestiality is. I had to look it up. They might think it is a learned skill (perhaps it is … ).

        • Michael_C_Scott

          That word has become a running joke in my life. One of the new guys in prison sat down to eat with Dangerous Dan the Machinegun Man and Rex and me and we included him in our conversation about polite, tame stuff. He finally asked me why I was in, as he said I seemed smart. Asking what someone did is a prison social faux pas, but instead of clamming up, I said I was in for homonecrobestiality.

          He thought about that, and then asked how that gets to be federal. Rex (God love him) didn’t miss a beat and explained that if it happens at an airport or a post office or a military base, it’s federal.

          He never sat with us again.

      • Daisy

        How does one pay rent, etc., without a job?

        • Joseph

          “How does one pay rent, etc., without a job?”

          Welfare or inheritance.

      • TheAntidote

        Die alte Handschrift! I’m gonna’ try that sometime.

    • They’re not allowed to ask you about misdemeanor convictions, only felony convictions.

      • Non Humans

        Not true my friend. I was denied an extremely good job one time because of a minor conviction for pot when I was 18. It was supposed to have been expunged long before. I denied the conviction on the application, it came back on the background check, they retracted their offer over that and nothing more.
        .
        I did my research on why it showed up. Turned out that it was a failure on the part of the county clerk’s office to submit my completed paperwork and the signed documents from the judge to the state and federal databases nearly a decade earlier. I hand delivered every bit of it to ensure that my record was cleared, found another job, then sicked an attorney on them. Ended up settling with the county for a good little chunk of change.
        .
        Guess what species the thing that neglected her duties that caused me all of that trouble was?

        • I was always taught that Federal law only lets employers ask about felony convictions, nothing more.

          But you presented a good object lesson about the legal industry. I’ve heard several more horror stories that are even worse than yours, about supposedly consummated processes that really weren’t. The object lesson is this — When dealing with the law and lawyers and their assistants, never believe them when they say that they’ll take care of it for you or they have it taken care of. Walk behind them every step of the way and either make sure they follow through with each step, and if necessary, do their jobs for them, and don’t stop until you have every bit of paperwork in hand fully completed, and everyone who needs that paperwork not only has it but has done what they needed to do with it.

        • Katherine McChesney

          Let’s see….errr….um…oh, I have it…could ‘it’ have been a fat, black woman with a weave, a manicure and cheap jewelry?

        • MikeofAges

          Don’t assume these “mistakes” are not deliberate, and not under the control of higher authorities. Perhaps you could sue the employer which retracted its offer for not using a background check method which provided a definitive report. We live under the rule and lawyers and the meritocracy of those who never got caught.

          You cannot have “experimented” with drugs without having committing felony crimes. Or have “sowed your wild oats” without committing statutory rape, probably. Or have had a “drinking problem” without having driven drunk many times over. Or “run” with the gang without having committed at least some crimes. Oh, and taxes. Can you have been self employed without being a tax cheat? Or been a professional or run a business without committing some kind of fraud?

          I forgot to tell you, old time athletes never cheated either.

          • Joseph

            They could still decline to hire just because of lying on the application. Saying that there was never a conviction is not the same as a expungement. He/she *might* have avoided this by indicating the facts of the matter -that it was a very old conviction in youth and that the conviction was expunged. I worked with someone who was in a very similar condition for a similar offense.

          • MikeofAges

            Generally, expungement means you do not have to disclose. And the information cannot legally be reported in a private background check. If someone wants to find out all about you, they can go ratching around the courthouse if they want, if they even know which one to ratch in. or hire some to do it for them. But that’s about it. Collecting and disseminating this information in a privately maintained database might well be illegal.

    • Non Humans

      “But suppose I had gotten caught drunkenly urinating behind a bar when I was 18? I’d get disqualified for that 30 years later while the Government encourages hiring black felons.”
      .
      Not only that, but if your caught for Public Urination, nowadays, it is charged as Indecent Exposure, and you become an immediate sex offender. Outrageous!!
      .
      I was out drinking with a close friend one night a few years back, and he began relieving himself in some bushes just down from where I had parked. I saw a cop approaching and didn’t have the time to tell him to zip up, so instead just “Stumbled” and fell into him with enough force to take us both down and told him to zip up then before we stood up. The lesser of the two evils was a near public intox charge. The cop let us go with just some tongue-lashing. All of it is absolutely ridiculous.

      • Michael_C_Scott

        You saved your friend a life in the Sex Offender’s registry. If you have your junk out for the purpose of urination even where you think nobody will see you, the pigs can charge you with all sorts of “public indecency”

        • Joseph

          “We’re just mammals, yes?”

          Astute observation so I would ask you then, since Africans are “just mammals” also, shall we adopt the behavioral mores of black Africans?

        • rebelcelt

          No, we are not just mammals like a monkey. We have a spirit. We are a much higher order of life.

  • thurlow

    Application for Kindergarten teacher:

    Jerry Sandusky: Denied because he is white

    Michael Jackson: HIred because he is black.

  • APaige

    It is an affirmative action program for black convicts, because they only have to compete with other black convicts. The decision to hire someone SHOULD be up to the owner or manager of a business-that is freedom and economics exercised by an individual who has to live with the consequences of that decision.

    • MikeofAges

      But should the government make that decision for them by maintaining accessible databases of background information? How about making the employer stand on his own feet.

  • HadEnough

    Never in human history has a society — here meaning the U.S. and the rest of the west (courtesy of their EEOC equivalents) — handed its competitors such a gift. While the Chinese get 24/7 shifts out of their slave-wage labor, we make it impossible for employers even to turn down an ex-con for employment. The contortions this society puts itself in to appease the Negro simply boggle the mind. In addition to having to hire excess numbers of room-temperature-IQ but non-criminal blacks to keep the affirmative-action crowd happy, now businesses must hire black released prisoners too. Our Far Eastern economic competitors must be laughing all the way to the bank right now.

  • Greg Thomas

    I’m currently reading “The French Revolution in San Domingo,” by T.Lothrop Stoddard. I swear history is repeating itself.

  • The__Bobster

    Ah, a new spoonie tax placed on our businesses. The Philly city council wants to mandate that all businesses gave paid sick days to their employees, which can be cashed out if unused.

    I think you have to be nuts to start a business today. One way or another, you’re going to be breaking some law.

    • Michael_C_Scott

      “I think you have to be nuts to start a business today.”

      You also have to be nuts to work for someone else today. I can tolerate it only in short doses.

  • Bill

    The EEOC and the allied dept of Justice section are all blacks for the most part. What did anybody expect? Blacks are idiots. Any decisions they make or policies they make would ergo be idiotic and biased in favor of blacks.

  • joesolargenius

    I speak Spanish and am considering working on my Tan and then changing my name to Pancho Villa in the hopes I will get hired somewhere , perhaps I should add a couple of felonies to my resume !

    • Michael_C_Scott

      Pancho Vanilla.

      I’d go with “Tuco Benedicto Pacifico Juan Maria Rodriguez” if I were you. Probably nobody will get the joke. You’d have to grow a mustache. They all have the same mustache.

      This would never work for me. I’m too tall, my grey eyes give away too much when the gold flecks enlarge to streaks, and even my mother says my hands look like those of a serial killer. Despite northeastern woodlands Amerind ancestry, I could never pass as anything other than northern European, even with my hair dyed black.

      I don’t recommend felonies. They cost too much.

      • joesolargenius

        I already have the mustache and can use brown contacts to cover my blue eyes , the felonies won’t cost a dime as there pretend anyway .

    • NewMexicoRoni

      My company (me) lost a good job … Here in America
      I do not speak Spanish

  • freespeechzone

    Here is just another example of White, Christian and law-abiding men being pushed down further in the ability to gain employment:

    1. Minorities (Black, etc.)
    2. Gays & Transgendered
    3. Women
    5. Felons, Habitual Criminals
    6. White, Christian, Law-abiding & College Educated Men.

    Welcome to the Obama vision of America…..

    • Room101

      Generations of Progressive haters of Western Civilization, and the USA in particular, have made Obama president.
      Twice.
      That Obama is president is surely a manifestation of a mass psychological-sickness, a mere symptom, not the disease itself.

  • [Guest]

    >>>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.

    Evidently my eye is unpracticed.

  • guest

    One thing I’ve noticed:

    Many industries in the US are suffering. The industries that are not suffering are our tech industries, basically our STEM industries. In those particular industries, you can do IQ tests, and use qualifications like STEM degrees which are themselves proxies for IQ. In effect, STEM fields are the only area that are exempt from EEOC madness, and they’re the one area that’s doing very well here.

  • Tom Iron

    The interesting thing about all these attacks on reason is they all have one thing in common. They attack excellence at every turn. Obviously, letting felons into whatever they’re let into will bring that area of endeavor down over time. That is the real objective. Our enemies understand fully this country was built on Excellence in every walk of life, something far beyond the reach of the blacks and hispanics.

  • liberalsuck

    I’m not surprised the person who wrote this article is happy another law discriminating against heterosexual whites. Look at his last name.

    • bigone4u

      I read it the opposite of you. Epstein is with the Hoover Institute, which is opposed to affirmative action nonsense. Look up Richard Epstein and you’ll see that he is a legal minimalist. He favors repealing civil rights laws. Do not let your stereotyping of Jews rule your opinions. Many Jewish thinkers oppose the junk that government is putting out these days.

      • liberalsuck

        My bad. I guess I got a little too knee jerk at first and thought he was supporting this. You’re right, he was against this law. I’m glad he is in favor of stopping these bogus ‘anti discrimination’ laws, but the fact is many of his ‘tribe’ have funded nonwhite groups, they have underminded white culture, they encourage interracial breeding, they encourage white women to have no white kids and/or adopt nonwhite kids, they emasculate our white males, they constantly trash and insult Western culture, they are behind the recent gun control laws, etc. That being said, yes, there are some good ones.

        • IstvanIN

          “My bad”? Don’t you mean “my mistake”? “My bad” isn’t English, it is ghetto slang. Please, let’s not devolve.

          • liberalsuck

            How is “my bad” ghetto slang? I’ve heard older whites say ‘my bad’ all the time and they aren’t liberal or PC.

          • I think “My bad” is a truncated form of the more sophisticated and older and erudite “my badulation.”

          • IstvanIN

            It certainly isn’t standard American English. I might add that some whites listen to “rap”, though I wouldn’t encourage it. Let’s not become like them, using slang and mumbo-jumbo.

    • StillModerated

      An to think The Hoover Institution used to be deemed “conservative.”

      His musings seem to hackery at best and lies at worst.

      http://www.hoover.org/fellows/10027

  • haroldcrews

    It is never a question of whether there will be discrimination or no discrimination but a question of what forms of discrimination will be permitted or even required by the state. This is true because anti-discrimination laws are enforced by creating legal privileges in favor of the previously disadvantaged (now advantaged) group and against the previously advantaged (now disadvantaged) group. We see this in the attempts to end discrimination against Blacks. It ended in reverse discrimination against Whites. We see this in the attempts to end discrimination against women. It resulted in reverse discrimination against men. And the most recent we see this in the attempts to end discrimination against homosexuals. It is causing discrimination against traditional Christians.

    • bigone4u

      As a white male, I’m getting shafted twice. If I was a Christian, I’d be shafted a third time. In my experience in higher ed, absolutely white male Christians were not hired. I was on an interview committee. One poor fellow, by far the best candidate, made it to the interview stage where he talked about how important his religion was to him. It was the kiss of death. He should have been babbling about diversity and inclusiveness. Discrimination against competence and decency is rampant these days.

      • Joseph

        Criteria for annual performance evaluations where I work is based on “Job Competencies and Key Behaviors” which of course includes “Inclusiveness” This means just what it sounds like where it is necessary to document how “effectively” we interact with “diversity of co-workers and the community” or some such.

        Penalizing people for negative or objectively offensive behavior is one thing but having to document positive “inclusive” behavior as part of a technical job is utter p.c. nonsense.

        Gag me with a voodoo doll.

  • Michael_C_Scott

    The logical outcome of this pathologically insane EEOC ruling is that more of the low-skilled jobs for which black felons qualify will simply be moved offshore; at the very least businesses will relocate to areas with few blacks. Another likely outcome is that more businesses will require periodic drug tests and institute “zero tolerance” narcotics policies; this will allow them to terminate at will the people most likely to use drugs: blacks.

    Instead of helping black ex-cons get back into the workplace and (hopefully) become productive citizens, this imbecility by EEOC hurts all blacks.

  • Room101

    By almost every metric, America is a gigantic prison.

  • Alexandra

    White guy does a stint in jail, comes home, people in the neighborhood say “Stay away from him, he’s a criminal.”

    Black guy does a stint in jail, comes home, everyone in the ‘hood is saying “You da man! You gots some street cred, bro!”

    Just a place to cool their heels, it seems. Any hint of discomfort (no cable or lacking in some creature comfort) and that sets off the ACLU.

    And I view this as more heinie-kissing. Blacks tend not to think of future consequences, they don’t think that some time in the slammer might be detrimental to any job opportunities (of course there’s handouts)…now it won’t be detrimental.

  • I understand that now days morality and personal responsibility is not looked upon as virtues in this multiracial mess. However, I must state that the term “Felon” or ” Felony” is not indication that a particular person is necessarily a bad person. Today, a felony can be almost anything, from not paying for a $10 postage stamps in a U.S. Post Office. to passing a bad $100 check, to catching the wrong fish in Alaska. to cutting a penny, I said a “Penny” in a half to use it for same decoration, to a long list of ridiculous “crimes”. I understand that when it comes to Blacks most of the time it involves extreme violence and drugs but consider that for many others it can be different. These archaic laws at the Federal and State level will have to be changed because people need to honestly work and not be held back by oppressive laws.