September 09, 2015
It is impossible not to think that our Civil Rights Laws are failing. Instead of the law resulting in fewer cases of discrimination each year, the number of cases increases in both the old areas of the law and the new. Those new areas include expanded definitions of discrimination.
Criminal records have always been an interesting area of discrimination law. Nowhere in Title VII are criminals protected from discrimination. The EEOC, however, appears to be adopting such a law as it applies to minorities with criminal records. This is a logical extension, at least in the minds of those people at the EEOC, of regulations prohibiting discrimination based on arrest records. It would probably be a good idea to
explain how the arrest record exception developed.
One of the ways discrimination is proven is through the concept of disparate impact. If an otherwise neutral policy has a disproportionate impact on a particular minority group or sex, that policy can be the basis for a charge of discrimination unless it can be shown that the requirement is a bona fide occupational requirement. One of the early cases decided by the Supreme Court involved a requirement that janitors have high school diplomas. Because a high school diploma was not required to empty trashcans, and the requirement had a disparate impact on black applicants, the policy was found to be potentially discriminatory on the basis of race.
Applying that reasoning to arrest records, it is more likely for an African American to have an arrest record than a non-minority, especially in urban areas. Because an arrest does not translate to guilt, it can rarely if ever be shown to be a bona fide occupational qualification. Being convicted of a crime, however, has always been treated differently. A crime is a crime, and if the State proves you have violated the law, that should be
good enough for an employer to make a hiring decision.
The EEOC, and people who support “ban the box legislation,” wish to elevate criminal convictions to something of an exalted status. Because a criminal record requirement could have a disparate impact on minorities, the EEOC wants to adopt a requirement that the nature of the crime be an important part of the consideration as to bona fide occupational qualification. Moreover, people behind the ban to box movement want to make it illegal for employers even to ask about criminal records until the job is about to be offered. Then, if the crime is such that it would disqualify the
employee from working, the ban the box people say it would be okay not to hire the applicant.
Unfortunately, determining whether a particular criminal conviction disqualifies an applicant is not easy work. I suppose being convicted of embezzlement should disqualify an individual from being an accountant. Should a cocaine conviction have a similar result? A conviction for being drunk and disorderly raises questions about the individual applicant’s self-control, but should it follow him to every job interview for the rest of his life? Self-control is always an important characteristic to consider in making a hiring decision, so there is no easy answer
While the EEOC is having a difficult time convincing courts that it is correct, there is always the chance that Congress, a state legislature, or a local government will adoptrules against the use of criminal convictions. In Maryland, there are already restrictions on an employer’s ability to use an applicant’s credit rating, and it is only a “short drive” over to a policy employing similar reasoning to criminal convictions. Remember, most
politicians believe that they are elected to enact laws, not repeal them.