Tuesday, May 8, 2012

The Discrimination Against White Men Accelerates Yet More

From the Center for Equal Opportunity:

In case you missed it, the U.S. Equal Employment Opportunity Commission recently handed down new  Enforcement Guidance that greatly limits the extent to which employers can consider arrest and conviction records of job applicants, principally on the grounds that doing so can have a “disparate impact” on the basis of race and ethnicity...

In a press release earlier this year, the Obama administration announced that Pepsi “has agreed to pay $3.13 million and provide job offers and training”after an EEOC “investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.”

This appears to be a straight “disparate impact” claim. That is, there is no claim that Pepsi’s policy on its face treated applicants differently on account of race, or was designed to exclude blacks, or was not evenhandedly applied — just that blacks were, statistically, more likely to be excluded by the policy and that Pepsi, in the opinion of the EEOC, did not have a good enough reason for thinking that people without criminal records would be better employees than people with criminal records...

Businesses are, understandably, not happy about all this: “Many in the business community have complained that the Guidance was rushed through with no public rulemaking or the associated process for public comment—a refrain recently echoed by the Senate Appropriations Subcommittee responsible for EEOC funding and Commissioner Constance Barker in her dissent.” I have been a frequent critic of the disparate-impact approach, but really—telling employers when they can and can’t consider criminal records?

My thought: Is a society really better when the government pressures employers to hire more felons and fewer non-felons? Is that fair to law-abiding job applicants?  Especially with so few jobs available? Is this not another frightening example of the Obama Administration's foundational belief in redistributive "justice," in egalitarianism over meritocracy?  My view is that this is Alice-in-Wonderland: So much of what's right is now deemed wrong. 

The administration has repeatedly promised to ramp up its use of disparate-impact claims not only in employment but in other areas of civil-rights enforcement — like mortgage lending, school discipline."

* * *
The Wall Street Journal, which ought to know better, has put together a “Women in the Economy” Executive Task Force, and recently held a “Women in the Economy” conference that was reported on in the Journal. As in the past, these folks seem not to have heard of Title VII of the 1964 Civil Rights Act, which makes it illegal for employers to engage in discrimination because of sex. Ignoring that little problem, the task force’s working groups included these recommendations:
  • “Hold senior managers accountable by tying promotion and compensation to meeting diversity goals and requiring regular reports to the board.” “[T]his group advised setting diversity targets and holding the senior executives’ feet to the fire . . .” “[E]xecutives whose ‘pay or promotions are at risk’ are more likely to change.”
  • “Post jobs regularly and ensure a diverse candidate slate. Hold regular succession-planning reviews and make managers accountable.”
  • “Require a diverse slate of candidates, and include women directors on the nominating committee.” “Make gender diversity nonnegotiable.”
  • “Find at least one female candidate for every technical job. Reward the C-suite for retaining and promoting women.”
  • “Government should be a role model for hiring, committing to 30% women at the top and reporting on progress.”
It cannot be argued with a straight face that these recommendations are anything but a call for companies (and the government) to set and enforce quotas on the basis of sex.

All this is particularly ironic in light of the unemployment rate being higher for men and that, per my previous post, the reasons for any gender pay gap are mainly the choices that women make. 


Anonymous said...

This is reason #67,890 why so many companies are offshoring jobs and expanding outside the US. It's also reason #34,567 why so many businesses are not hiring, and why so many small businesses are one-person shops.

In private, many business owners & executives have told me several things: First, if you are an attractive young woman, getting hired is a snap. Second, single mothers make poor employees. Third, what often happens is that these companies hire single young women, and figure that they've gotten their money's worth once they get married and devote more time to parenting...any thoughts?

Anonymous said...

Marty: This issue is a non starter. Women and Hispanics are the key to the 2012 election. One side has them, the other side needs to lop off some of them. NO ONE is going to jump on this. Also, Rush and the $3million that just one company lost as a result of ad boycott make it even trickier. Your screeds, no matter how well intentioned will go nowhere in this environment. Give it up for now.

K-Man said...

Marty, for the most part I applaud this move for two reasons you might not have considered.

First, many employers look at arrest records without looking at whether a conviction followed. Many, many people have been unfairly denied employment because of a past arrest, even though charges were later dropped or a trial resulted in a "not guilty" verdict. The attitude these employers—and others, such as landlords—who use arrest records instead of convictions seems to be that "where there's smoke, there's fire" or "he must have been guilty of something to have been arrested". This flies in the face of how our justice system works: innocent until proven guilty.

Some have been denied jobs because someone with a similar name was arrested or convicted. Databases and online info are often not accurate, another grave issue for those affected.

The reality is that you can be arrested for simply being in the wrong place at the wrong time at a cop's whim, and younger US cops are increasingly brutal and untrustworthy. They view all of us now as perps. It shows.

The second is that allowing widespread discrimination against those who have been arrested, let alone convicted, creates a class of unemployable people. This is not good for society, and for those with criminal records this discrimination hinders their productive return to society.

We next need to address widespread use of credit reports to deny employment, which is creating another class of unemployable people to no good end for society. And just wait till medical records and DNA are added into the mix if some have their way.

I don't favor affirmative action for those with criminal records. But they should be subject to the same consideration for most jobs as anyone else. A conviction should be grounds to deny employment only if it is for a crime relevant to the job, such as (for example) a theft conviction for a job handling money or valuables. We need to get away from employers being allowed to render millions of people unable to get a job because of some blemish or past stupidity.

I should also note that arrest records are sealed and unavailable to employers and others outside the justice system in most other countries outside North America. This does not seem to be a problem for employers in those countries.

Marty, I hope you will rethink your position.

Anonymous said...


Have you seen or read Atlas Shrugged? It's chilling to see the U.S. move ever closer to the dystopia described by Ayn Rand in her novel.

Your blog performs a valuable service in detailing how this is occuring.

Michael R. Edelstein


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