One of the Obama
administration’s most aggressive social justice engineering schemes was busted
earlier this month in federal court in Texas. In 2012, the Equal
Employment Opportunity Commission effectively made it a federal crime for
businesses to refuse to hire felons and ex-convicts. Federal Judge Sam
Cummings ruled on Feb. 1, 2018 that the EEOC violated federal law in
concocting this new federal offense, providing the Trump administration a
divine opportunity to rein in run-amok bureaucrats.
The EEOC’s 2012 “Enforcement Guidance on the Consideration
of Arrest and Conviction Records in Employment Decisions” was 20,000 convoluted
words intended to browbeat businesses to cease checking the records of job
applicants. EEOC commissioner Constance Barker, who opposed the new rule,
warned that “the new Guidance will… scare business owners from ever
conducting criminal background checks… the Guidance tells them that they
are taking a tremendous risk if they do.”
EEOC justified its
“Enforcement Guidance” because the imprisonment rate for black men “was nearly
seven times higher than white men and almost three times higher than
Hispanic men.” John McWhorter, a black professor at Columbia
University, observed, “Young black men murder 14 times more than young
white men.” The EEOC used statistical disparities to justify effectively
designating criminal offenders as a new “protected class” under the Civil
Rights Act of 1964.
The EEOC sporadically pushed
this radical doctrine in earlier times but was harshly rebuffed. In 1989,
the EEOC sued a Florida trucking company for refusing to hire a Hispanic
applicant with multiple arrests and a prison term for larceny. Federal judge Jose Gonzalez Jr. snarled, “EEOC’s
position that minorities should be held to lower standards is an insult to
millions of honest Hispanics. Obviously a rule refusing honest employment
to convicted applicants is going to have a disparate impact upon thieves.”
U.S. Civil Rights Commissioner Gail Heriot testified to
Congress: “The EEOC’s pattern of enforcement on this issue has
been marked by something akin to religious fervor. It has targeted
employers whose line of work is sensitive enough that the need for clean
criminal records should be viewed as an obvious business necessity.”
The EEOC’s enforcement
has been as capricious as the process of creating the new rules. The EEOC
hounded the Freeman Companies, a Maryland-based convention and corporate events
planner, demanding that it pay compensation to rejected job
applicants who lied about their criminal records.
Federal Judge Roger
Titus characterized an EEOC report on Freeman’s
hiring practices as “laughable,” “based on unreliable data,” “rife
with analytical error,” “completely unreliable,” “full of material flaws,”
“distorted,” “worthless” and “an egregious example of scientific
dishonesty” and condemned the EEOC’s attempt to “make a mockery of procedural
standards.” Titus complained that the EEOC demanded policies that would
“condemn the use of common sense” and awarded
almost a million dollars in attorneys’ fees to Freeman.
The biggest challenge to the
new hiring regime came from the state of Texas, which launched a lawsuit in 2013 against the
so-called “Felon-Hiring Rule” and claimed a “sovereign right to impose
categorical bans on the hiring of criminals, and the EEOC has no authority
to say otherwise.” Texas complained that, under the new
rules, “even a preschool could not
categorically refuse to hire all job applicants convicted of ‘indecent
exposure’ in the last two years.” The EEOC insisted that “no legal
consequences” flow from the Guidance. But EEOC Guidance is
compulsory for every company that cannot afford half a million dollars in
legal fees fighting the agency in court.
A federal appeals court
scoffed at the feds’ non-binding claim in a 2016
ruling that noted that the EEOC was applying the Guidance to
“virtually all public and private employers.” The case was remanded to a
district court, where Judge Cummings found that the EEOC violated the Administrative Procedures
Act by failing to offer a public notice-and-comment period
before imposing the new rules.
“Enforcement guidance” is one of the
favorite tools of bureaucratic dictators, entitling them to punish any
entity that refuses to kowtow to the latest politically correct mandates. The
Trump administration has already rescinded Obama-era guidance on how colleges investigate sexual assault claims, Americans with Disabilities Act compliance and
many other areas. Trump’s nominee
for assistant attorney general for the Civil Rights Division, Eric
Dreiband, has strongly criticized the EEOC rule, which is part
of the reason he is vehemently opposed by liberal activists.
EEOC’s crackdowns on
background checks and similar ban-the-box local and state regulations are
spawning unexpected harm. A 2016 Harvard Kennedy School analysis concluded
that background check restrictions adversely effect female job applicants,
who have much lower rate of criminal offenses.
University of Virginia
economist Jennifer Doleac analyzed the data
and concluded, “black and Hispanic men without college degrees are
significantly less likely to be employed after ‘ban the box’ than before.”
Civil Rights Commissioner Peter
Kirsanow observed: “The fact that more African-Americans are hired
when employers utilize criminal background checks indicates that in the
absence of better information, employers use race as a proxy for criminal
history.”
President Barack Obama declared in 2013, “The arc of the moral
universe may bend towards justice, but it doesn’t bend on its own.” But
recent experience shows that permitting federal agencies to bend the law and
the Constitution is no substitute for justice. It is time for the Trump
administration to toss the notion of criminals as a “protected class” onto the
junk heap of bureaucratic history.
Reprinted with permission
from James
Bovard.
James
Bovard is the author of Public Policy Hooligan, Attention Deficit Democracy, The Bush Betrayal, Terrorism and Tyranny, and other books. More
info at www.jimbovard.com.
Copyright © 2018 James Bovard
https://www.lewrockwell.com/2018/02/james-bovard/usa-today-eeoc-felon-hiring-rule-busted-in-texas/