In the dystopian nation of Oceania constructed by George Orwell in 1984, government agencies used innocuous, unobjectionable sounding names to mask their true activities, often the opposite of what the name would imply. For instance, the Ministry of Truth institutionalized historical revisionism and propaganda. The Ministry of Love enforced loyalty through fear and repression. And the Ministry of Peace waged war while the Ministry of Plenty rationed everything. In the United States, we have the Equal Employment Opportunity Commission, which is diligently working to ensure that no one can afford to employ anyone, ever.
I previously wrote about EEOC harassment of a trucking company that chose not to employ an alcoholic. Now the agency wants to punish employers who run background checks, even going so far as to declare that it doesn’t even matter if they are compelled to do so by state or local law (Hat-tip: Dan Mitchell):
Last April, the agency unveiled its “Enforcement Guidance on the Consideration of arrest and Conviction Records in Employment Decisions,” declaring that “criminal record exclusions have a disparate impact based on race and national origin.”.
..If a background check discloses a criminal offense, the EEOC expects a company to do an intricate “individualized assessment” that will somehow prove that it has a “business necessity” not to hire the ex-offender (or that his offense disqualifies him for a specific job). Former EEOC General Counsel Donald Livingston, in testimony in December to the U.S. Commission on Civil Rights, warned that employers could be considered guilty of “race discrimination if they choose law abiding applicants over applicants with criminal convictions” unless they conduct a comprehensive analysis of the ex-offender’s recent life history.
It is difficult to overstate the EEOC’s zealotry on this issue. The agency is demanding that one of Mr. Livingston’s clients—the Freeman Companies, a convention and corporate events planner—pay compensation to rejected job applicants who lied about their criminal records.
The biggest bombshell in the new guidelines is that businesses complying with state or local laws that require employee background checks can still be targeted for EEOC lawsuits. This is a key issue in a case the EEOC commenced in 2010 against G4S Secure Solutions after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.
G4S provides guards for nuclear power plants, chemical plants, government buildings and other sensitive sites, and it is prohibited by state law from hiring people with felony convictions as security officers.
If you ever find yourself demanding that a company hire convicts to guard nuclear power plants or face legal action, it’s time to reexamine your principles – somewhere along the line you’ve adopted a bad premise. In the case of the EEOC, the problem is intrinsic to their purpose. The organization’s goal is oxymoronic.
Consider the name: Equal Employment Opportunity Commission. They seek to ensure equal employment opportunities, and that sounds reasonable enough. But individuals aren’t ever equal, and should have no expectations that varying degrees of talent, work ethic, determination and character will be treated the same. Ah, but it’s not individuals that must be treated equal but “protected classes” such as minorities, they claim. The problem is that nobody hires classes, protected or otherwise. Individuals are hired. Thus the only way the EEOC has found to protect these classes is to protect all individual members of those classes, regardless of the reason for “unequal” treatment. This leads to completely ridiculous cases like demanding that criminal records be given no weight in hiring, or else, because some groups are more likely to be criminals than others.
Which leads to another problem, and that is our understanding of “discrimination.” That members of one group are more likely to have criminal records does not make the practice of considering the criminal past of job applicants “discriminatory” in the socially undesirable sense. It’s not like jail is something that (typically speaking) just happens to people. For all the faults of our criminal justice system – and there are many – breaking the law is still generally a prerequisite to having a record. In other words, the applicants are being judged on their choices, which reflect their character and reliability – both things of eminent importance to employers, particularly as they are more and more being held both legally and socially responsible for the behavior of employees. If people can’t be judged on their choices, then why even have a hiring process? Just pick an applicant’s name at random and be done with it. Ultimately that seems to be what the EEOC wants. If that seems far-fetched, consider the UK employer who was told not to advertise for “reliable” candidates because it would allow lawsuits on the basis that it discriminates against the lazy.
In my previous coverage of the EEOC, I noted the problem with the modern obsession with “discrimination” and its overly broad application:
The use of the ADA to protect alcoholics goes beyond what I think most people thought such legislation was passed to accomplish. “Discrimination” has in many ways gotten a bad rap. Not all discrimination is bad. In fact, most is not. Everyone discriminates all the time. Rational thought requires discriminating against differing ideas. Choosing friends means discriminating against the untrustworthy, the boring or the unpleasant. Likewise, running a business requires discriminating against bad practices in favor of good ones, or discriminating against incompetent employees in favor of the productive, and discriminating against people that cannot be counted on, like frickin’ alcoholics. Of course, some businesses might put up with such things if the employee is capable of doing their job in spite of their personal failings, and that is their right. There’s simply no reason why a trucking company should be forced to do so.
Sure, there are things on which people ought not discriminate, but the word applies to more than just such instances. Our linguistic inability to recognize such distinctions anymore is now affecting how we apply laws like the ADA.
No one wants to be for “discrimination,” and so no one wants to say that the government ought not actively seek to prevent “discrimination” against historically vulnerable or targeted groups. But increasingly it should be apparent that government hasn’t the ability or desire to distinguish between the type of discrimination society wishes to end, such as that which is race or gender based – and the kind which it does not and which is necessary for the basic ability to draw distinctions between people who, by the very nature of humanity, are indeed distinct. This lends itself to one of two conclusions, 1) That government may not be the most appropriate vehicle by which society should combat undesirable forms of discrimination (this may come as a shock to some, but many solutions to social problems happen outside of government) or 2) that some degree of socially undesirable discrimination is just the price we must pay to continue living in a free society.
I serve as Vice President of the Center for Freedom and Prosperity, a non-profit think tank dedicated to preserving tax competition and free markets. This site features my personal views, which are not reflective of CF&P.