The Equal Employment Opportunity Commission on Tuesday accused two major companies of indirectly discriminating against African Americans by using criminal background checks to screen out workers.
The commission said BMW effectively fired 70 black employees with criminal histories from a facility in South Carolina, even though many had been there for years. One woman with 14 years under her belt was let go after a misdemeanor conviction surfaced that was more than 20 years old and carried a $137 fine, according to the EEOC’s lawsuit.
EEOC says firms used criminal background checks to screen out workers, most of whom were black.The agency also alleged that retailer Dollar General revoked job offers to two black women after conducting criminal background checks. In one case, the EEOC said that the records were inaccurate but that Dollar General declined to reconsider the woman’s application. The other involved a six-year-old drug conviction.
“It is a fairness issue,” said David Lopez, the commission’s general counsel. “Litigation is really, truly the last resort.”
The growing use of criminal background checks in hiring decisions has become a flash point in the broader debate over high unemployment rates among African Americans. Not only did blacks lose more jobs and more wealth than other racial groups during the recession, they also have struggled to gain a foothold in the recovery — an issue some community leaders have called the next front in the civil rights movement. A criminal record, advocates say, is an economic scarlet letter that can send otherwise qualified applicants to the bottom of the pile.
The EEOC lawsuits were brought under the Civil Rights Act, which prohibits discrimination against job applicants on the basis of race. Both BMW and Dollar General denied the allegations and said they complied with all laws.
Although the commission said employers are allowed to conduct background checks, it charged that the companies’ blanket policies of not hiring candidates with criminal records amounted to discrimination against African Americans. Justice Department statistics show that blacks accounted for 37 percent of those behind bars last year, even though they make up only 13 percent of the U.S. population.
To be sure, the corporate behavior in the cases the story cites strikes me as deeply unfair and worthy of strong criticism. But illegal? An employer now has to stand accused of violating the Civil Rights Act because she doesn’t want to hire convicted criminals, who are disproportionately found among black Americans? This is like the idea, advocated by Education Secretary Arne Duncan and Attorney General Eric Holder, that the disproportionate rates of black students being disciplined in school is prima facie evidence of racism. One is not allowed to consider the possibility that black students disproportionately break the rules, and that their discipline problems might have something to do with the disproportionate level of fatherless families in the black community. Besides, as this report points out, Asian kids are disciplined less than their numbers indicate:
Researchers have not been able to find clear evidence of discrimination by school officials. The Department of Education recently published new data surveying 72,000 students, approximately 85% of the nation’s enrollment. Asian students received proportionally much less discipline than white students. They were 6% of enrollment but only received 2% of in-school suspensions, 3% of first-time out-of-school suspensions, 1% of multiple out-of-school suspensions, and 2% of expulsions. White students were 51% of enrollment and received 39% of in-school suspensions, 36% of first-time out-of-school suspensions, 29% of multiple out-of-school suspensions, and 33% of expulsions. Black students were 18% of enrollment and received 35% of in-school suspensions, 35% of first-time out-of-school suspensions, 46% of multiple out-of-school suspensions, and 39% of expulsions. If school officials discriminated against black students in favor of white students, then they also discriminated against white students in favor of Asian students. Of course, racial disparities in discipline do not prove discrimination because there may be disparities in behavior.
Are schools therefore giving Asian kids a pass on bad behavior … or is it the case that Asian kids behave better? Which do you think is more likely? Don’t look for school districts to start suspending more Asian kids to meet their quotas. If the disparate impact believers were consistent, they would push for this. But some impacts are more disparate than others.
Again, I think that the zero tolerance behavior shown by BMW and Dollar General is deeply unfair, and they ought to be called on it. But it’s only racist if you believe in crackpot egalitarianism that insists on a double standard, and absolves officially favored victim groups from ordinary standards of conduct.