I’ve spent the past couple days going over a briefing by the U.S. Commission on Civil Rights titled, “Assessing the Impact of Criminal Background Checks and the Equal Employment Opportunity Commission’s Conviction Records Policy.”

In summary, it reads in part: “On December 7, 2012, the United States Commission on Civil Rights held a briefing to examine the disparate impact provisions of the Equal Employment Opportunity Commission’s (EEOC) April 2012 guidance concerning the use of criminal background histories (2012 Guidance or ‘new guidance’). The Commission wished to learn about the effects of the EEOC’s revised policy on employers and on black and Hispanic applicants with or without a criminal record.

“The briefing’s seventeen speakers included a high-ranking EEOC official, scholars, attorneys, social scientists, personnel executives, a former offender now policy director of an advocacy and job placement service, a family member of a victim slain by an unscreened ex-convict sent to the victim’s home as a contractor six months earlier, ex-felon advocacy groups, business associations representing home care, small business and retail, and a security company currently under investigation by the EEOC.”

On the one hand, the EEOC held that a criminal who went, over an extended period, without being involved in the commission of a new offense similar to the one(s) which led to incarceration provided an objective metric that defended their being worthy of employ sans criminal background checks and thus to be denied employment based on offense(s) committed in the past is “unwarranted and illegal.”

“From the EEOC’s point of view, employers have long had a legal obligation to refrain from excluding any member of a protected class who has not been individually considered or screened and given a chance to pursue a legitimate occupation, the protected class in this instance including mainly black and Hispanic job applicants or employees with criminal records.”

Rather than bore you to tears, as was the case with me as I pored over the nearly 400-page briefing, let me cut to the chase. Two of the commissioners were joined by the vice chair in holding that, “The guidance advocated by the EEOC is premised on a misapplication of ‘disparate impact’ theory. And, the EEOC misapplied ‘disparate impact’ theory by comparing ex-offenders to non-offenders.”

The simple definition of “disparate impact” is this: The action, i.e., practice of an employer using a metric that on the surface appears to be fair and equal for all, i.e., facially neutral; but in reality is discriminatory in its application. Disparate impact theory is the bugga-boo long used to hold potential employers hostage so as to force them to employ those who may otherwise not be qualified or suitable fits to a particular business.

The idea that it is unfair to do criminal background checks because it disadvantages those in protected classes, namely blacks and Hispanics, is a subfusc and specious argument used to mask the true intent, which is to dictate forced compliance under threat of the weight of government punishing a business for acting in its best interest.

As presented in the “statement and rebuttal” argued by one commissioner, “A desire to lend a helping hand to those who need it – including ex-offenders – is commendable. But as most of us learn sooner or later, helping others is not always as easy as it seems – especially when increased government regulation is the only tool at one’s disposal.”

The commissioner noted, “If a business owner makes a mistake about what his customers want … the collateral damage to supposed beneficiaries of his bad idea is often minimal. … Government regulatory policies, on the other hand, tend not to be so isolated in their impact.”

The bottom line, if I may, is that there are consequences for bad behavior; and some of these consequences have lingering, if not lasting, effects. If Pete Rose were black or Hispanic, should it be considered disparate impact because he is unemployable in baseball for breaking the cardinal rule years ago? Is that any different than hiring a pedophile, a rapist, an embezzler, etc.?  What about the insurance liability that is associated with employing people with criminal records?  Shouldn’t the penalty of that cost being passed onto consumers be considered?

It is undeniable that there are no few people who have erred at some point in their life. Many have paid for such errors by being incarcerated. But I think it is best served to leave the greater responsibility to the employ of these persons to the discretion of the employer.

I personally view Title VII as government overreach and the Sword of Damocles that threatens all to conform to unconstitutional edicts.

The idea of abandoning common sense in favor of a flawed rationale of leniency and fairness in most cases is met with the equivalent of Pyrrhic results.

I argue it is more productive to promote the results of errant and contumaciously bad judgment as detrimental based on potential consequences that result from same. But there is no determent if there is little or no fear of the consequences of bad behavior.

I also argue that is a primary causal factor pursuant to the disproportionate levels of violent crimes and incarceration of blacks and Hispanics. They have little, if any, fear of the consequences of their actions. America as a whole consists of more than criminals. We do not serve the needs or the safety of the law abiding when we continue to establish precedents that ultimately reward the lawbreakers.

We must temper good intentions with common sense and an understanding of culpability. We do not serve the public, the employer or the ex-offender to abandon/ignore the necessity for same.

Media wishing to interview Mychal Massie, please contact [email protected].


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