Oregon just became the latest state to join the “ban-the-box” cult.
This one still ticks me off. A lot. Not that I live or work in Oregon. Not that I’ve ever visited Oregon, though it looks nice in pictures. Rather, this latest member of the feel-good club simply reminded me of the wrong direction we’re headed.
Assume you own a business, built from long hours of hard work, lost sleep, lean times, and pride. The job market, like today, has dozens of applicants for every job you’re opening. You’re in fact turning applicants away for jobs. And, as a matter of policy and principle, you don’t hire ex-cons.
Boom! How dare you not want to hire convicted murderers, rapists, burglars, child molesters, or embezzlers. You are now the guilty party. You're the one breaking the law. Really. And I’m not making this up.
A couple years ago, the EEOC in its quest for utopia announced that it would begin whacking employers that have a blanket policy of not hiring criminals. The EEOC’s “guidance” on this bit of social engineering is here.
Are criminals the new protected class? Maybe, at least according to the EEOC, 18 states, Washington, D.C., and several cities that now prohibit employers from asking anything about criminal records on a job application.* Save those questions about criminal convictions for later, after you’ve made a conditional job offer and after you’re even further down the hiring road. Yeah, that makes sense.
“Ban the Box” – the trite name for this bizarre prohibition – is another verse from the old song that any wrongdoing is “society’s fault.” But criminals make behavioral choices, and those choices carry consequences beyond fines and jail terms.
Convicts can’t own firearms. Convicts can’t vote. Ironically, convicts can’t hold many federal jobs. . . except perhaps in Congress. (Hmmm, go figure?) Yet the “ban-the-box” craze would force employers into a role of social agency to see whether or not their new employee is a recidivist. That's a risk employers should not have to take.
Sure, most employers can satisfy the EEOC’s guidelines or ban-the-box laws by jumping through hoops to assess whether their applicants’ criminal convictions should disqualify them from being hired. But why put an employer through this process at all? What the EEOC and other ban-the-box proponents deliberately ignore is that this make-work exercise imposes real costs, wastes time, and unreasonably interferes with an employer’s interest in running its business as it chooses.
Employers have a right (no, a duty) to ask, at the first instance and on a job application, if the person seeking to join their business, work with fellow employees, enter customer homes, or handle company funds is a convict. Period. Any restriction on that gatekeeping function infringes on the business owner’s property and liberty rights.
And how by the way is the EEOC doing in its efforts to gag employers and tie their hands in the hiring process? Not so good. Courts have spanked the EEOC for its overreach in this area. For a few examples, see the district court and Fourth Circuit’s decisions in EEOC v. Freeman Companies, as well as the Sixth Circuit’s decision in EEOC v. Peoplemark.
So what’s an employer to do in light of EEOC or state and local ban-the-box laws? It’s time to get mad. It’s time to fight back. It’s time to be as creative as the EEOC is in finding the proverbial bogeyman where none exists. Howard Beale summed it up quite nicely in the movie “Network.”
If you or your business face a complaint for your “unlawful” ban against hiring convicts or for failing to “properly” assess a convict’s potential impact on your business, consider some of the following possible defenses and tactics:
- Argue an improper delegation of powers by the EEOC unilaterally creating criminal behavior as a new protected class – if Title VII does not protect criminals, why should the EEOC second guess Congress?
- Assert a defense or counterclaim for unlawful taking and deprivation of liberty and property interests and due process rights, in violation of state and federal constitutions – yes, Lochner deserves a revival.
- Seek EAJA relief or other remedies providing for reimbursement of litigation costs & attorneys’ fees for defending against administrative and court actions. In the Peoplemark case, above, the court affirmed an award of $750,000 for costs & fees to an employer that successfully defended a criminal background check lawsuit by the EEOC. Now there's a tax refund for ya.
- Send FOIA or open records requests or, if in litigation, seek discovery of the charging agency's own practices in hiring and background checks – for instance, the Sixth Circuit in EEOC v. Kaplan Higher Education Corp. expressly called out the EEOC suing an employer “for using the same type of background check that the EEOC itself uses.” What’s sauce for the goose is sauce for the gander, right?
The EEOC has given no sign of relenting in its enforcement of guidelines protecting convicts. But the silver lining so far is the courts also aren’t buying this ban-the-box silliness. Courts instead are calling the EEOC’s disparate impact arguments underlying this prohibition “laughable” and “unreliable” – their words, not mine.
There may indeed be a pox on ban the box. We can only hope.
* States with some flavor of ban-the-box laws include California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nebraska, New Jersey, New Mexico, Ohio, Oregon, Rhode Island, Vermont, and Virginia.