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House Hearing on EEOC Background Check Policy
This morning, the House Subcommittee on Workforce Protections held a hearing on the EEOC’s regulatory and enforcement priorities that focused on the EEOC’s new criminal background check policy. As regular readers of this site know, in December 2012 the U.S. Commission on Civil Rights held a briefing on the EEOC’s criminal background check guidance. At the USCCR hearing, representatives of a wide array of businesses expressed their opposition to the guidance, and representatives of the EEOC and ex-offender advocacy groups expressed their support for the guidance. As evidenced by today’s hearing, despite the passage of time, many businesspeople, victim advocates, and members of Congress continue to oppose this guidance.
In his testimony, the National Small Business Association’s (NSBA) Todd McCracken described the quandry faced by small businesses, who find themselves “caught between competing government priorities and perspectives among different federal agencies, the courts, and the state and federal governments.” Many states prioritize the safety of consumers and categorically bar people with certain criminal records from working in certain fields. The EEOC’s guidance says that an employer can only comply with such a state requirement if the requirement complies with the guidance’s requirements. The guidance provides no safe harbor for employers who refuse to hire an employee because they are complying with a state law or regulation. Similarly, states are likely to be unimpressed if an employer violates state law by hiring a person with a criminal record for a particular position while trying to comply with the EEOC guidance. And of course, hiring a person knowing they have a criminal record (or hiring a person and not conducting a background check) leaves an employer exposed to a negligent hiring lawsuit if the employee commits a crime.
During questioning, Mr. McCracken also noted that applying the guidance poses particular difficulties for small businesses. Small businesses are less likely to have a separate HR department in-house counsel that can learn the ins and outs of the individualized assessment process. Additionally, determining the job-relatedness of a particular conviction is difficult in a small business setting, because jobs are more flexible and duties can change quickly. A conviction for assault might not be particularly relevant if an employee is just stacking bales of hay, but it might be relevant if the employer needs him to start manning the cash register in the afternoon. Determining the job-relatedness of the crime for every single duty an employee might be asked to perform is a heavy burden for small employers.
Camille Olson, representing the U.S. Chamber of Commerce, highlighted the EEOC’s inconsistent attitude toward its guidances based on what is the most advantageous position in a particular situation:
[T]he EEOC continues to send mixed signals regarding the efficacy of its guidance positions. For example, in the State of Texas v. EEOC litigation, the EEOC describes its guidance documents as “lack[ing] the force of law.” Yet, only months later, the Solicitor General of the United States asked that the Supreme Court not to grant a writ of certiorari in Young v. United Parcel Service because the EEOC is about to issue enforcement guidance on the issue. Note the inherent inconsistency in those positions. Employers are forced to comply with policy positions set for in enforcement guidance documents, while the EEOC argues in court that those positions have no force of law, while at the same time the Department of Justice requests that the Supreme Court deny granting a writ of certiorari in Young because the EEOC’s anticipated guidance will resolve the issue.
The EEOC is ranging far afield of its statutory mandate, particularly in regard to disparate impact. The criminal background check guidance is just one manifestation of the abuse of disparate impact to achieve policy goals (in this case, the reintegration of ex-offenders) that are outside the EEOC’s authority. This debate has been going on since the EEOC first mentioned in 2011 that it was considering new criminal background check guidance, although the guidance was not released until the day the EEOC voted on it in April 2012. Today’s hearing shows that the debate is not over.
The written statements of the hearing panelists are available here.
Obama Administration Ignores Congress, Pursues Administrative Akaka Bill
As the country celebrates Memorial Day weekend and remembers those who died for our country, the Obama administration quietly issued an Advanced Notice of Proposed Rulemaking (ANPRM) that will drive a wedge between neighbors. By way of background, Native Hawaiians are not a tribe, but a race. They are not eligible for tribal status under the Constitution. In 2000, the Supreme Court’s decision in Rice v. Cayetano cast doubt on the constitutionality of set-asides for Native Hawaiians because those set-asides confer a benefit on the basis of race. Ever since Rice v. Cayetano, Native Hawaiian activists have been trying to attain tribal recognition so they can preserve these preferences by recasting them as preferences on the basis of tribal status instead of race. In response to rice, the late Sen. Daniel Akaka proposed “the Akaka bill,” which would grant tribal status to people of Native Hawaiian blood despite the lack of an historical tribe and the unconstitutionality of such a measure.
Congress rejected the bill every time Sen. Akaka proposed it. As Commissioners Heriot and Kirsanow wrote in a 2010 Wall Street Journal op-ed, the bill would establish two systems of government for American citizens living side-by-side – one for people of Native Hawaiian descent, and another, less favorable regime for people who are not of Native Hawaiian descent.
Last year, rumors began to circulate that if Congress did not pass a version of the Akaka bill, the Obama administration would attempt an end-run around Congress and unilaterally confer tribal status upon the Native Hawaiians. This is exactly what yesterday’s ANPRM does. Conferring tribal status upon the Native Hawaiians would be unconstitutional if Congress did it. It is doubly unconstitutional, and lawless, for the Administration to confer tribal status upon Native Hawaiians on its own authority. It has no authority to confer tribal status upon Native Hawaiians, but hopes that doing this through the bureaucratic process will stymie the opposition and perhaps leave its action invulnerable to legal challenge.
Commissioners Heriot and Kirsanow, along with former Commissioners Gaziano and Thernstrom, sent a letter to the Administration last year warning against any attempt to confer tribal status upon Native Hawaiians. Read the entire letter here: Letter to President Obama Opposing Executive Order Implementing Akaka Bill (September 2013).
Mainstreaming Illegal Immigration, Gutting the Rule of Law, and Racializing Everything
Last week, Commissioner Kirsanow and I wrote a piece regarding DOJ’s novel application of disparate impact to discourages schools from requiring parents to show a driver’s license to enroll their children in school. Read the full post here.
MacDonald on Schuette: The absurdity of racial-preferences jurisprudence
In City Journal, Heather MacDonald discusses the Supreme Court’s Schuette decision, the weakness of the political process doctrine, and the absurdity of Justice Sotomayor’s racialist dissent. Read it all: Majorities, Minorities, and Mismatches
Kirsanow and Heriot on disparate impact
Commissioners Kirsanow and Heriot discussed the spread and constitutionality of disparate impact at the Federalist Society’s Executive Branch Review conference. Adam Liptak of the New York Times moderated, and Ted Shaw, a professor at Columbia Law School and a longtime leader of the NAACP’s Legal Defense Fund, also appeared on the panel.
Watch the whole thing here.
Supreme Court upholds legislative prayer in Town of Greece
This morning the Supreme Court issued its decision in Town of Greece v. Galloway. Two citizens of the town of Greece, New York, challenged the town’s practice of having a brief prayer before meetings of the town board as a violation of the Establishment Clause.
The point of contention was that the majority of prayer givers were Christian clergy from various local churches. The town of Greece lacks the teeming religious diversity of larger cities, and in fact appears to have only one non-Christian house of worship within its boundaries. The Christian prayer givers often gave explicitly Christian prayers. The town allowed non-Christians to give the opening invocation (this included a Wiccan priestess and a representative of the local Baha’i community), but by and large the prayer givers were Christian. The respondents sought to restrict prayers to generically religious themes, rather than permitting them to use whichever religious themes and terms they chose – which, given the demographics of the town, were almost always Christian.
Justice Kennedy’s majority opinion was joined in full by the Chief Justice and Justice Alito, and Justices Thomas and Scalia joined the opinion except as to Part II-B. Justice Kennedy held that the town’s legislative prayer practice did not violate the Establishment Clause. The majority refused to hold that legislative prayers must be nonsectarian, writing:
To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. (Kennedy, J. at 12-13).
Justice Kennedy’s opinion, along with the concurring opinions of Justices Alito and Thomas, relies heavily on the history of legislative prayer in the United States (“The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.” (Kennedy, J., at 24)) The practice actually precedes the existence of the United States as an independent entity, as Samuel Adams suggested and initiated the practice at the beginning of the Continental Congress in 1774. (Kennedy, J. at 15; cf. Alito, J., at 10). That first prayer was offered by the Rev. Jacob Duché and was an explicitly Christian, indeed Anglican, prayer. Many of the prayers since offered before Congress have been explicitly Christian, or Jewish, or Buddhist. It would be odd, the majority suggests, if a practice initiated by the Founders and continued through the ratification of the Constitution and Bill of Rights and to this very day, was suddenly declared unconstitutional.
Additionally, Justice Kennedy writes, the dissent’s focus on the lack of diversity in prayer givers is mistaken. The town has made it clear that it welcomes invocations of people of any faith or no faith. The town initially contacted prayer givers by consulting a publication from the local Chamber of Commerce. There was not a deliberate policy or effort to invite only Christian prayer givers and exclude non-Christians.
So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote “a ‘diversity’ of religious views” would require the town “to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each,” a form of government entanglement with religion that is far more troublesome than the current approach. (Kennedy, J., at 17-18) (citations omitted).
Read the full decision here: Town of Greece v. Galloway
Letter to Secretary Duncan and Attorney General Holder Regarding School Discipline Guidance
Download PDF: Letter Regarding School Discipline Guidance
In February 2014, Commissioners Heriot and Kirsanow sent Secretary of Education Arne Duncan and Attorney General Eric Holder a letter expressing opposition to disparate impact provisions contained in a “Dear Colleague” letter and accompanying Guidance. The letter expressed the probability that Title VI does not include a disparate impact component, as was stated in Alexander v. Sandoval. The letter also warned that even if the legal issues surrounding the Guidance could be resolved, it would still be unwise policy.
Assessing the Impact of Criminal Background Checks and the EEOC’s Conviction Records Policy
Download the PDF: Report on EEOC Criminal Background Check Policy
In April 2012, the Equal Employment Opportunity Commission (EEOC) adopted a new guidance regarding the use of criminal background checks in hiring. The EEOC argues that the practice of using of criminal background checks in hiring can violate Title VII because it has a disparate impact on black and Hispanic men, who are more likely to have criminal records. The new guidance arguably discouraged employers from using criminal background checks when making hiring decisions, and was accompanied by statements from EEOC officials warning against the use of criminal background checks in hiring. However, the EEOC claimed that the guidance did not represent a significant departure from the previous guidance. Therefore, in December 2012, the Commission held a briefing to receive testimony about the purpose of the guidance, the effect of the guidance on employers, and the effect of the guidance on the purported beneficiaries.
Comment to HUD Regarding “Affirmatively Furthering Fair Housing” Proposed Rule
Download PDF: HUD Comment Affirmatively Furthering Fair Housing
Commissioners Kirsanow, Gaziano, and Thernstrom submitted a comment to HUD opposing a proposed rule entitled, “Affirmatively Furthering Fair Housing.” The proposed rule relied on disparate impact theory to claim that racial and ethnic geographic clustering due to housing costs constituted segregation. The rule contemplated providing program participants with data about the racial and ethnic makeup of geographic areas. The participating programs would then use this information to encourage people to live in certain areas based on their race and ethnicity.
Letter to President Obama Opposing Executive Order Implementing Akaka Bill
Download PDF: Letter Regarding Executive Order Implementing Akaka Bill
In September 2013, Commissioners Heriot, Kirsanow, Gaziano and Thernstrom sent a letter to President Obama in response to media reports that he was being urged to implement portions of the Native Hawaiian Government Reorganization Act (the “Akaka bill”) via executive order. The letter restated the commissioners’ longstanding opposition to any such provisions. The commissioners point out that neither Congress nor the President has the authority to create an Indian tribe or to recreate a polity that existed in the past. A tribe is not based on bloodline, but is defined by the enduring existence of a separate society. Native Hawaiians are a race, not a tribe, and do not have a separate society. The Kingdom of Hawaii itself was a mixed-race society. The efforts to confer tribal status upon Native Hawaiians is an effort to preserve unconstitutional race-based privileges for Native Hawaiians in the wake of Cayetano v. Rice.