Saturday, March 09, 2013

An "Endangered Species Act" for Ex-Cons?

The federal Equal Opportunity Employment Commission (EOEC) has made it a federal crime for an employer to "discriminate" against hiring certain "protected" classes of convicted ex-felons, unless the employer jumps through all sorts of hoops of justification.

In fact, it is easier for the employer to refuse to hire an ex-con who happens to be white; however, he has to leap ever-higher legal hurdles of justification if the convicted former felon happens to be a member of a "protected" minority.

Folks, I am not making this up. Eminent legal scholar Richard Epstein offers this long article about this particular symptom of "progressive" insanity. Writes Epstein:

With the [EOEC's] Enforcement Guidance [document], 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.
You can read that EOEC "Enforcement Guidance" document for yourself. Here is an excerpt from Section V (my translation of bureaucratese is in brackets):
A covered employer is liable for violating Title VII [of the 1964 Civil Rights Act] when the plaintiff [i.e., the ex-con seeking a job] demonstrates that the employer’s neutral [that means NON-discriminatory] policy or practice [of hiring] has the effect of disproportionately screening out a Title VII-protected group [i.e, someone regarded as "protected" due to race, color, religion, sex, or national origin] and the employer fails to demonstrate that the policy or practice is job related for the position in question and consistent with business necessity.
Translation: Even an employer who has a perfectly non-discriminatory policy and record regarding hiring minorities, but who refuses to hire some convicted ex-felon who just happens to be a member of one of the "protected minorities," may still be breaking the law...unless he first somehow manages to prove that even his neutral policy of refusing to hire ex-cons is required "for the position in question and consistent with business necessity."

Got that? The businessman is "guilty until proven innocent" for refusing to hire some guy who may have been convicted for robbery or violence...simply because the businessman hasn't proved that his policy against hiring thugs is "job-related."

But gets even worse. Section V continues: 

With respect to criminal records, there is Title VII disparate impact liability where the evidence shows that a covered employer’s criminal record screening policy or practice disproportionately screens out a Title VII-protected group and the employer does not demonstrate that the policy or practice is job related for the positions in question and consistent with business necessity. [my emphasis]
What does the EOEC mean by "disproportionately screens out a Title VII-protected group"? The document goes on, in Section V. A. 2, to grouse that "Nationally, African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population." That, you see, is prima facie evidence of how "unfair" things are in Racist America, folks. Never mind that members of these minority groups also are "disproportionately" responsible for committing far more crimes per capita than Caucasians do...which of course happens to explain their higher arrest and incarceration rates.

No, the "disproportionate" number of minorities behind bars is simply assumed to be unfair, per se. From the mere fact of these incarceration statistics, the EOEC's conclusion must be read slowly, to be understood and believed:

National data, such as that cited above, supports a finding that criminal record exclusions [from hiring] have a disparate impact based on race and national origin. The national data provides a basis for the Commission to further investigate such Title VII disparate impact charges. During an EEOC investigation, the employer also has an opportunity to show, with relevant evidence, that its employment policy or practice does not cause a disparate impact on the protected group(s). For example, an employer may present regional or local data showing that African American and/or Hispanic men are not arrested or convicted at disproportionately higher rates in the employer’s particular geographic area. An employer also may use its own applicant data to demonstrate that its policy or practice did not cause a disparate impact. [emphasis added]
What does this mean in practice? Take this example:

A local restaurant owner refuses to hire some Mexican gang member who's just been released from the slammer. The ex-con, because he is Hispanic, and thus a member of a "protected minority," files a complaint with the federal EOEC. The EOEC then investigates, looking for a "disparate impact" against minorities. The hapless small businessman may already have a number of other minority employees -- obvious evidence that he doesn't discriminate based on race or ethnicity. But that is not enough. Now he is also supposed to prove that his "practice does not cause a disparate impact on the protected group" -- Hispanics -- by somehow digging up "regional or local data showing that...Hispanic men are not arrested or convicted at disproportionately higher rates in the employer's particiular geographic area."

Leaving aside the outrageous reversal of the legal burden of proof -- leaving aside, too, the enormous cost to this small businessmen of hiring attorneys and jumping through all these egregious legal hoops -- who will subsequently bear liability for a massive lawsuit if he hires this former felon, and the thug then goes on to rape a fellow employee or swindle his clients?

Richard Epstein's excellent piece offers a detailed legal analysis of this ideologically driven absurdity, which can allow thugs to be hired as security guards and thieves as bank tellers...if they're demographically lucky enough to fall under the protections of this twisted, "progressive," racial/ethnic variation of the Endangered Species Act.