The EEOC is Right, But Also So Very Wrong (Part 2)

The EEOC argues that employers who use criminal background checks as a singular basis for not hiring qualified candidates are violating Title VII because such policies have a disparate impact on Black and Hispanic people.  In Part 1 we discussed the reasons why there would be an almost unanimous, practically knee-jerk negative reaction to the EEOC’s litigation on this issue as a racial case, rather than having trainers make the business case to employers.  We left off with asking for agreement on this statement:  “Every action that has a disparate impact to Black and Hispanic people is not about intentional or conscious racism.”

The key words here are “intentional” and “conscious.”  I think the EEOC realizes this, and for this reason it sought to hide the agency’s own background check policy.

The EEOC has sued, among other companies, discount retailer Dollar General Corp. and carmaker BMW Manufacturing Co. LLC over their criminal background check processes.  I am not an apologist for companies that discriminate against Black people, yet I was astounded that when asked to reveal their own background check policy and processes, the EEOC adamantly refused on the grounds that its own policies were not relevant.  Although in a ruling on December 8, 2014 the EEOC was ordered by U.S. District Court Judge Henry M. Herlong Jr. to produce to BMW “all documents that constitute, contain, describe, reflect, mention, or refer or relate to any policy, guideline, standard, or practice utilized by the EEOC in accessing the criminal conviction record of applicants for employment with the EEOC,” the fact that the agency had to be forced to be transparent astonishes me and makes the EEOC look like a hypocrite of the highest order.

The EEOC has offered a detailed list of best practices for employers to follow when utilizing criminal history information in employment decisions. If the EEOC is implementing its own best practices, it should be willing to present its procedures as a template other companies could copy in order to avoid litigation.  Instead, the agency maintains that its own policies and practices are irrelevant as a matter of law.  This argument is incomprehensible and defies common sense.  If the agency is not following its own recommendations and its own practices could be interpreted as having a disparate impact on certain groups of people – even if said impact is unintentional or unconscious – then it must clean up its own house before inspecting other employers’ offices with a white glove.

If the EEOC is essentially suing companies for using the same type of background check that it uses, then its lawsuits are a game that no one can afford to play.  We cannot afford the political divisiveness and gamesmanship that result in, as Labor Secretary Thomas Perez puts it, the U.S. “getting our butts kicked by other countries in workforce investment.”

Statistics may in fact support the argument that a blanket refusal to hire restored citizens disproportionately affects Black and Hispanic people.  But instead of taking a “do as I say and not as I do” approach, the EEOC should take the lead in modeling to public and private sector companies how the full inclusion of restored citizens into the workforce is not only legally correct, but also the safe and profitable thing to do.  Restored citizens are people whose legal debt to society have been fully discharged but who cannot pass a background check.  Many of them are veterans.  Of the ten skills employers say they seek in 2015, restored citizens do in fact possess these skills, and they have translatable “experience education” which successfully transfers into the business world.

If the EEOC cannot make this case, and has no small business liaisons that can make it, then the agency should seek the expertise of someone who can do it for them.  And if the EEOC is concerned that an in-depth scrutiny of its own background check policy and processes would reveal a disparate impact that is rooted in unintentional and unconscious bias or racism, it should be the first to do what it proposes to the companies that it sues, which is, hire an expert to assist it in addressing the understandable fears – and not necessarily the intentional and conscious racism – that underlies employers’ unwillingness to comply with the EEOC Enforcement Guidance regarding Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

Lisa Forbes Inc. helps employers and those responsible for economic and workforce development to redefine the idea of a “qualified employee” and integrate restored citizens into the workforce in positions that are appropriate for their skill level – rather than automatic placement in low wage, transitional and entry-level jobs.  Contact me to learn how restored citizens can restore your workforce.

As a Restored Recruiter Lisa Forbes is redefining what it means to be a qualified employee and empowering restored citizens to rise above their conviction. Learn more at Also connect with Lisa via Facebook I Twitter I LinkedIn I Youtube

Posted on January 27, 2015 in Journal

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