Life Imitates Art at the EEOC

If you’ve never seen the movie “Idiocracy,” which depicts a futuristic American government devoid of reason, justice, and personal responsibility, this might be a good weekend to rent and watch it in view of the “guidance” recently foisted upon American employers by the Equal Employment Opportunity Commission (EEOC). If the Affordable Care Act (a.k.a. “Obamacare”), whereby employers are made responsible for their employees’ health, weren’t enough for one to conclude that our nation had fallen through Lewis Carroll’s looking glass (into “Wonderland”), try demonizing employers who decline to employ convicted felons.

Unless you’re a lawyer who pays attention to the EEOC’s guidance updates, or a psychological expert in employment cases, or a management consultant and lecturer at a business school, or a Wall Street Journal reader who happened to catch James Bovard’s excellent article on it last week (I’m all of the above), you may not have been aware of this, but you should be, if you’re interested in optimizing the quality of the American workforce with which we’re to compete against China for global economic dominance, and especially if you’re an American employer:  The EEOC is actually threatening to sue employers who use felony convictions as exclusionary hiring criteria. If you’ve seen “Idiocracy,” this sounds like something straight out of that movie, I know, but sadly, it’s reality.

The legal premise underlying the EEOC’s revised guidance is not new, but the length to which President Obama’s hand-picked EEOC leadership has now stretched this premise is both new and further illuminative of what I see as the President’s disdain for the very individuals who’ve forged and fueled the engine of American productivity. The premise is “disparate-impact” discrimination, and it refers to indirect forms of discrimination whereby exclusionary hiring criteria, even if applied to all job applicants equally, impact members of protected classes disproportionately to other applicants, intentionally or unintentionally.

In this case, the EEOC argues that excluding convicted felons from consideration for employment has a disparate discriminatory impact on black and Hispanic applicants who, statistically, have higher frequencies of felony conviction than members of other racial groups. The revised EEOC guidelines require an employer who uses a felony conviction as an exclusionary hiring criterion to either be able to prove how that specific felony rendered that specific felon unqualified for that specific job or to face a disparate-impact discrimination lawsuit.

As an attorney who has worked on both high- and low-profile employment cases, please first allow me to illustrate why disparate-impact discrimination should not be viewed as a universally-bad thing. Consider the specific felony of insider stock trading. Among convicted insider-trading felons, white males are represented disproportionately to members of other racial groups. Thus, if an insider-trading conviction is used as an exclusionary hiring criterion on Wall Street, it’ll have a disparate impact on white male applicants, which is precisely as it should be. If white males are committing the crime disproportionately, then it stands to reason that they bear the consequences thereof disproportionately.

To demand that Wall Street employers eliminate insider-trading convictions from their pre-employment inquiries to prevent a disparate impact on white applicants would be insane, but then I’m getting ahead of myself, swapping my lawyer hat for my shrink hat prematurely. Hiring an insider-trading convict to work in a Wall Street firm would likely be deemed negligent, and the employer would likely be held liable for damages, were that convict to use information obtained in the course of his or her employment to make and/or to facilitate trades that were detrimental to clients of the firm or even to the investing public.

Now, I know what you’re thinking – there’s a clear nexus between having committed a prior felony involving insider trading and the likelihood of committing a similar felony if given another opportunity to do so – even the EEOC would acknowledge that, right? Don’t be so sure, but regardless, as a psychologist who has served as an expert in employment cases, please allow me to state the following, definitively and unequivocally, in my professional opinion:  There is an inherent nexus between one’s character and one’s likely behavior on any job, anywhere, anytime, and the commission of a single felony, in and of itself, is a reasonable basis for the conclusion that an applicant is characterologically unfit for employment. (And if you know an employer who ever has to defend against a disparate-impact discrimination claim filed by a convicted felon, I’ll be happy to repeat that in court on the employer’s behalf!)

But what if that Wall Street applicant’s prior conviction were for an attempted rape 20 years ago? One could argue that it doesn’t have anything directly to do with trading stocks today, but that wouldn’t make the applicant any more qualified for a Wall Street job than for a job in a women’s fitness center, and here’s why:   The kind of individual who would ever have attempted a rape is the kind of individual whom I’d never recommend that one ever trust to behave lawfully around one’s clients or employees, let alone one’s cash, property, or data. And just imagine the negligence liability, not to mention the moral culpability, if a Wall Street firm hired that applicant, who then went on to rape a client or fellow employee of the firm.

While the United States Constitution expressly enshrines within its First Amendment the freedom of social and political association, it also expressly recognizes within its Commerce Clause the power of the federal government to regulate commercial association. If our economy is analogized to a national “Monopoly” game, then the Founders essentially reserved the right for us, as a nation, to make certain “rules of the game” that those who wish to participate must follow. At the same time, our Founders and Supreme Court, historically, have recognized that such rules operate as abridgments of the private-property rights that are foundational to both our economy and our civil liberties.

Such abridgments then, have traditionally required both the presence of a compelling higher priority (of which there are few, relative to private-property rights) and the absence of an alternative way to achieve it. Ameliorating the unemployment of felons is by no means a compelling national priority, disparate impact or not, and to the extent that anyone (the Obama EEOC at least) cares about it, there are alternative ways to achieve it. How about ascribing personal responsibility to job applicants of all races not to commit felonies in the first place? A felony-free record is not a high bar to impose upon job applicants of any race. How many felonies have you committed? Zero? Me too, and it hasn’t been difficult, and as law-abiding citizens, we deserve to be treated preferentially.

In addition, not all employers use felony convictions as exclusionary hiring criteria. Some employers are willing to hire, and routinely do hire, convicted felons – voluntarily. Bovard aptly noted, however, a possible unintended consequence of the EEOC’s revised guidelines that I, as a management lecturer and consultant, concur is likely. The revised guidelines may actually increase unemployment among black and Hispanic Americans as some employers may make stereotypical assumptions about some applicants which could’ve been dispelled by the very criminal background inquiries which the employers may now be afraid to make.

Since 2008, in my WorldNetDaily columns and elsewhere, I’ve been warning that President Obama, I believe, sees the United States as an unfair, unjust, and oppressive nation in need of fundamental “change” far beyond that which he promised in two Presidential campaigns and that, like all presidents, he’d appoint government officials who share his views. For corroboration, one need look no farther than the EEOC’s fundamentally un-American new mandate that productive citizens expose their consumers, employees, and assets to individuals whose disrespect for our way of life has been proven beyond a reasonable doubt. As Ayn Rand more famously warned over 50 years ago, Atlas has shrugged, up is down, down is up, “A ≠ A.”

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