by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Byron York devotes his latest Washington Examiner article to detailing some of the more disturbing views held by Debo Adegbile, President Obama’s nominee to lead the U.S. Justice Department’s Civil Rights Division.
There are a number of reasons many Republicans oppose the nomination, most prominent among them Adegbile’s passionate and continued advocacy on behalf of Philadelphia cop-killer Mumia Abu-Jamal. But one objection to the nomination has received little public notice, and it involves a quiet but growing controversy over the issue of criminal background checks.
It’s not unusual for businesses to conduct a check before hiring new employees. If the check uncovers that the applicant has, say, a felony conviction in his past — well, that can put a quick end to the application process.
But Obama’s Equal Employment Opportunity Commission has ruled that the use of background checks in hiring is racially discriminatory. In 2012, the EEOC issued “guidance” to the nation’s businesses, citing statistics showing blacks and Hispanics are convicted of crimes at significantly higher rates than whites. Therefore, the EEOC ruled, excluding job applicants based on their criminal records would have “a disparate impact based on race and national origin.”
The EEOC did not say past felonies could never be considered in job applications. But the guidance made clear that an employer who chooses not to hire a felon could have to present a detailed defense to the EEOC. “The employer needs to … effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position,” the guidance said. Employers who cannot prove to the EEOC’s satisfaction that excluding a felon from a particular job is a “business necessity” could be in trouble. And whatever the outcome, the company could have its hands full with a costly lawsuit from the government.
“One bright-line policy you should not adopt is having a no-felons policy,” EEOC commissioner Victoria Lipnic told the U.S. Chamber of Commerce in a March 2012 speech. “If you have that policy, that’s going to be a problem if you’re subject to an EEOC investigation.”
Hearing that, many employers might say: This is crazy. There are companies that will reject a job candidate because he posted something embarrassing on his Facebook page, and the Obama administration is warning businesses they’ll be in trouble if they don’t hire convicted felons? …
… In written questions, Republican Sen. Chuck Grassley asked Adegbile whether he would, if confirmed, “take action to abridge or eliminate an employer’s ability to perform criminal background checks on potential employees.” Adegbile embraced the EEOC position and suggested it would guide his own actions in the Justice Department. “If employers do perform background checks, the EEOC has released guidance on the subject,” he told Grassley.
As the Adegbile nomination nears a vote, the Civil Rights Commission’s [Peter] Kirsanow has written a letter to the Senate opposing Adegbile not just for his activities on behalf of Abu-Jamal — still the hottest issue in the Adegbile debate — but also for his support of the EEOC on background checks. “Mr. Adegbile’s support for the guidance demonstrates his commitment to an ideological agenda at odds with the law and common sense,” Kirsanow wrote.