Keep an Eye on Color, and Ignore Character

In case you missed it, the U.S. Equal Employment Opportunity Commission last week 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. Martin Luther King’s dream has now been turned completely on its head: The government keeps a careful eye on race and forbids judgment about character.

There are certainly circumstances where employers might be willing to consider hiring someone with a criminal record, and circumstances where they might not. But where there is no consideration of race, why should the federal government be second-guessing those decisions, which the employer (and the applicant’s fellow employees) will have to live with?

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 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?

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