The EEOC damns with damned lies

There are lies, damned lies, and statistics, said Mark Twain. It should therefore not surprise us that the Equal Employment Opportunity Commission is using statistics to tag employers with otherwise diverse work forces as discriminatory.

Are criminal background checks racist? That's the startling new legal theory that the Equal Employment Opportunity Commission unveiled this week in lawsuits against employers. It's another example of how President Obama's appointees are using regulation to achieve policy goals they can't get through Congress.

On Tuesday the EEOC accused retailer Dollar General and a U.S. unit of German car maker BMW of violating the 1964 Civil Rights Act by using criminal checks as part of their employment decisions. The logic? Blacks have higher conviction rates than whites, and therefore criminal checks discriminate against blacks.

The EEOC alleges that BMW discriminated against blacks because it screened contractors in South Carolina for convictions for "Murder, Assault & Battery, Rape, Child Abuse, Spousal Abuse (Domestic Violence), Manufacturing of Drugs, Distribution of Drugs, [and] Weapons Violations," and more blacks than whites are convicted of those crimes.

The suit says 70 black BMW contractors and 18 non-black contractors had criminal convictions, and the company declined to hire them. The suit seeks redress, such as hiring the plaintiffs, back pay, legal costs and more, but only for the black contractors.

In its Dollar General suit, the agency says that 10% of blacks and 7% of non-black applicants failed the retailer's criminal screening. The EEOC calls that three-percentage-point difference a "gross disparity" that is "statistically significant" enough to qualify as discrimination.

We would have thought that criminal checks discriminate against criminals, regardless of race, creed, gender or anything else. Such criminal checks are legal and have long been part of the hiring process at many companies. You can argue that criminals deserve a second chance in life, or even a third or fourth, but business owners and managers ought to be able to decide if they want to take the risk of hiring felons.

The EEOC suit is part of the Administration's larger effort to redefine racism in America by using statistics, rather than individual intent or evidence. The Justice and Housing Departments have rewritten their rules and punished banks and counties like Westchester, N.Y., based on disparate statistical measures of lending and zoning. The EEOC signaled its plans in April last year when it rewrote its enforcement strategy, declaring that "an employer's evidence of a racially balanced workforce will not be enough to disprove disparate impact."

Mull that one over. Even if a company has a racially diverse workforce, it can still be sued if its applicant pool doesn't meet the EEOC's statistical tests. So a retailer that decides it would rather not have proven thieves manning its cash registers could be guilty of racism if the convicted thieves in its applicant pool are disproportionately minority.

Commentary

On the substance, we note that we are not huge fans of criminal background checks for most jobs, but do them routinely for two reasons. First, some jobs fundamentally require a clean record. No company ought to hire somebody with a history of fraud, for example, as its controller. Since it is very hard to sort which jobs ought to be checked against which offenses -- a truck driver ought not have a DUI on his record, but a check-kiting charge years ago might not matter, and the opposite would apply to an accountant -- employers do these checks routinely and apply judgment when they discover an issue. Second, we do these checks out of concern for liability and our general commitment to responsibility -- if our truck driver with an undiscovered history of DUI hurts somebody while on the job, our business would probably be on the hook for damages, and probably ought to be. If the government successfully wins its argument that background checks are inherently racist because of their disparate impact, businesses everywhere will be damned if they do, damned if they don't.

We admit to some confusion over the practices of Dollar General and BMW. In our company, we ask about criminal records on our application, and the background check is used to verify the honesty of the applicant. If a prospective loading dock worker tells us that he got busted for kiting checks 15 years ago and that is the only offense that turns up on the background check, we would go ahead and hire him. I cannot imagine any other way of doing it -- why spend the money on the background check until the candidate has otherwise passed muster? We wonder, therefore, whether the EEOC is actually suing Dollar General and BMW for refusing to hire liars, which is an entirely different question and would be even more egregious.

Regardless, our insistence on criminalizing relatively minor drug offenses is the most persistent reason for different rates of conviction between ethnic groups. The federal government is therefore suing businesses for managing through a problem that is substantially the result of its own damned policy.

Catch-22 does not look so funny from that point of view.