Background Checks as the New Racism
Leftists push to make it illegal for employers to ask, “Have you ever been convicted of a felony?”

HHS secretary Kathleen Sebelius during a House Energy and Commerce Committee hearing on October 30, 2013


John Fund

Many of the groups that have divvied up the $67 million in federal money available for hiring navigators say that they can’t afford the background checks some states are requiring. They note that the 20 hours of training each navigator receives includes warnings about the penalties for misuse of personal data. Amanda Ptashkin, outreach director for Georgians for a Healthy Future, complains that Georgia requires “a time-consuming process” that includes an affidavit of citizenship, a $50 fee, fingerprinting, and a background check. But the navigator jobs pay up to $48 per hour — exceptionally good money in a soft job market — and the burdens aren’t different from those that many private-sector applicants face.

But even these basic requirements will change if many of the civil-rights and advocacy groups involved in the navigators’ patronage trough have their way. There is an active campaign on the left to “ban the box,” or remove the checkbox question that’s common on job applications: “Have you ever been convicted of a felony?”

Last month, California governor Jerry Brown signed a law banning public employers from asking about criminal records until the employer has established the applicant’s “minimum qualifications.” The federal Equal Employment Opportunity Commission issued a “guidance” last year saying that employers must establish that an inquiry into an applicant’s criminal record is a “business necessity” before they can make the inquiry. Otherwise, the employer could face employment-discrimination lawsuits under the theory that such background checks have a “disparate impact” on African Americans and Hispanics and are therefore unfair. The EEOC’s guidance also effectively requires that employers signal to job applicants that they were screened out of the job-applicant pool because of their criminal records, making the odds of a lawsuit against them dramatically higher.

Even worse, the EEOC has pursued employers that have a clear “business necessity” interest in the integrity of their employees, such as G4S Secure Solutions Pennsylvania, a firm that provides security guards for nuclear power plants and other sensitive sites. The EEOC went after the security firm for not hiring an individual convicted twice of burglary. G4S thought it was merely being prudent: Pennsylvania law forbids the hiring of individuals as security guards if they have felony convictions. 

The Obama administration is clearly moving away from its prior support for background checks, at least when its politically correct allies find such checks offensive. But I am certain that most Americans would be angry to learn that the kind of vigorous background checks census workers underwent just three years ago have been abandoned in the case of Obamacare navigators. After all, the personal data the navigators will handle is even more sensitive than what census workers were tabulating.

Roger Clegg, head of the Center for Equal Opportunity, laments that we seem to have ignored Martin Luther King’s appeal to judge people “by the content of their character” rather than “by the color of their skin.” Today, all too often, skin color trumps all: Race is often used as the basis for preferring one job applicant or college student to another. But under the EEOC’s guidance, employers who try to factor in the content of one’s character, at least as revealed by one’s criminal record, risk costly litigation and stigma. Welcome to the Catch-22 world of the Obama administration.

— John Fund is national-affairs correspondent for NRO.