After careful consideration, it's hard not to conclude that at some level, ultra-conservatives are simply sadists with better P.R. Why else, after all, would anyone endorse the kinds of cold-hearted, impractical -- even socially destructive -- policies idealized by such persons, unless they were simply nursing a cruelty jones, concerned solely with inflicting pain for pain's sake, rather than worrying about whether or not their policies made sense?
To wit, reaction by many such folks to the announcement this past week that the EEOC is suing BMW and Dollar General (the discount store) for racial discrimination, because of their alleged misuse of criminal background checks to screen potential employees. Because these checks have a disparate impact on African Americans, due to higher rates of criminal conviction than the rates for whites, the government is suing, not to completely prevent the use of background checks, but to alter the indiscriminate manner in which these two companies, and many others, have used them.
Before getting into the matter of how reactionaries have responded to the news -- and rest assured, it has been with fits of apoplexy strong enough to register in all likelihood on the Richter Scale -- a brief review of the issues at hand might be helpful.
So, follow me beneath the…well, you know the deal.
The EEOC Claims
As for BMW, a sub-contractor for the company at its South Carolina facility had hired certain persons, despite prior criminal convictions, because those convictions were more than seven years old: a sufficient length of time to satisfy the hiring policy of the sub-contractor. When the subcontractor terminated its relationship with BMW, those whom it had previously hired were required to re-apply with BMW through the new contractor so as to keep their warehouse jobs
As noted in the official announcement from the EEOC:
The new contractor subsequently discovered that several (previously hired) employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the criteria for working at the BMW facility and were subsequently terminated and denied rehire as employees of the new contractor, despite the fact that many of the employees had worked at the BMW facility for years.As the allegation goes on to explain:
The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants' respective positions.Since these persons had been working in the BMW warehouse for years without incident, their termination seems to have occurred without regard for their present-day character, relying instead on outdated criminal activities, which said employees had shown no propensity to repeat. As such, it appears as though the relationship between the policy and some compelling business interest (like preventing criminal activity on the job) was particularly weak and worthy of challenge. These workers had already demonstrated that they were not likely to re-offend, and especially not to engage in criminality at work to the detriment of their employer. So any presumption that the company had a good reason to worry about these employees re-offending -- and thus, possessed a rational basis to apply the policy in this manner -- should be rightly seen as absurd.
As for the action against Dollar General, the EEOC notes:
...one (rejected applicant) was given a conditional employment offer, although she had disclosed a six-year-old conviction for possession of a controlled substance. Her application also showed that she had previously worked for another discount retailer as a cashier-stocker for four years. Nevertheless, her job offer was allegedly revoked because Dollar General's practice was to use her type of conviction as a disqualification factor for 10 years.Now, putting aside whether these plaintiffs might have stronger cases based on legal grounds other than disparate racial impact -- such as unlawful termination in the last case, in which the individual didn't even have the criminal record falsely ascribed to her -- is there anything unreasonable about the suggestion being made by the government here, that such blanket exclusions of ex-offenders are not only unfair but impractical?
The other applicant...was fired by Dollar General although, according to the EEOC, the conviction records check report about her was wrong -- she did not have the felony conviction attributed to her...although she advised the Dollar General store manager of the mistake in the report, the company did not reverse its decision and her firing stood.
One would think that such a claim, which would allow companies to use criminal background checks, but not in such an indiscriminate and illogical way, would strike most as the height of reasonableness. It balances the legitimate interests of employers -- who worry about offenders obtaining jobs where their prior offense might be pertinent, like child molesters working in a day care, or embezzlers working at a bank -- with the legitimate interests of society to ensure that ex-offenders successfully re-enter the legal workforce, thereby supporting themselves and their families.
Because They Hate: Rejecting Common Sense for Revenge
And yet, that which is reasonable to reasonable people is equally as cringe-worthy to the FOX News crowd: folks for whom no indignity is too great for a convicted criminal, especially those who've made the mistake of offending while black. Were it possible to transport such persons from their unsuccessful and preferably humiliating job interviews directly to a dark basement, in which place they might be hanged from the walls by their thumbs and tortured with cattle prods, one suspects there are more than a few among the fans of Bill O'Reilly and Sean Hannity who would pay to watch the festivities.
On the popular right-wing site Free Republic -- which has featured previous posts proclaiming falsely that the EEOC seeks to force employers to hire ex-offenders of color -- reaction to news of the lawsuits was swift and predictable. A few examples:
Maybe if they did not commit crimes disproportionately to their representation in the population there would be no problem! Again the law abiding are supposed to bend over for criminals because of racial background.
This is nothing more than the Federal Government forcing companies to hire black criminals. We are a mini South Africa with Obama in the White House.Similar comments featured prominently at the Washington Post, where readers advised those who don't wish to be barred from employment to "keep yourself out of trouble" and "don't commit crimes" (and if it's too late for that, well then, expect no sympathy or second chances), and also at CNN Money, where posters overwhelmingly derided the lawsuits on the premise that because black crime rates are higher, they should simply expect to be denied jobs more often, and that "Black leaders need to get on the side of productive society and stop defending thugs."
That the individuals denied jobs in these cases -- or fired from jobs they previously held -- were not actually thugs, and had been convicted of mostly minor crimes (like drug possession), seems to matter not to these kinds of commenters, who apparently believe that anyone with a criminal conviction should pay in perpetuity for their mistakes, and be rendered unable to make a legal living ever. At the very least, their comments suggest that whatever interest society may have in reintegrating ex-offenders pales in comparison to the societal interest in ensuring that employers have the right to hire and fire anyone they wish and for any reason at all. Because, FREEDOM!
On my hometown paper's site, readers were especially caustic, such as Daniel Hiller, whose stream-of-consciousness racism often fills the comments section of the paper, and who recently waxed wistful (on June 10th) about the good old days when men who fathered children out of wedlock and the women who bore those children would be stoned to death.
In the instant case he offered the following utter non-sequitur demonstrating his feelings less about the pending lawsuits, and more about his contempt for a black community he feels is being coddled by the very notion of civil rights:
The Black community sucks up more government services, police, fire, welfare, free medical care etc., in proportion to their numbers than any other group. HIV rampant in Black community, abortion, black on black crime and murder, unemployment, single parents etc. etc. and it's always someone else's fault.But remember, conservatives are colorblind, and I'm sure Mr. Hiller's best friend is black. So there's always that...
Because To The Rest of Us, Facts Matter
Anyway, the rationalizations offered by Hiller and others for barring persons with criminal records from employment -- regardless of circumstances, distance from the offense, and relationship of the crime to the job being performed -- ignore both the facts and the fundamental illogic of such policies. There are several reasons why the over-reliance on criminal background checks by employers is irrational as a method of choosing presumably more law-abiding and honest employees, and why the racial disparity produced by such practices should be viewed as unacceptable.
Racial Disparity of Background Checks Not Justified by Differential Offending Rates
First, and as regards the argument that the only reason blacks are hit especially hard by these policies is because "they commit the crimes," the facts are quite a bit more complicated.
As for criminal offending, though African Americans have higher arrest and conviction rates, this is not always because they actually commit particular crimes at higher rates than whites. Especially for drug possession offenses (like those in play in many of the cases currently being addressed by the EEOC), the disproportionate rates at which blacks and Latinos are arrested and convicted for such crimes, relative to whites, bears no resemblance to the rates at which these groups' members actually use illegal narcotics.
According to all the available evidence, rates of drug use between whites, blacks and Latinos are essentially the same. Which is to say that if blacks are arrested at four times the rate of whites for marijuana possession -- and presumably convicted at least four times as often too -- this is not because they are four times as likely to commit that particular crime. Rather, it is because despite the fact that whites commit the crime just as often as blacks, law enforcement resources are concentrated on catching only some and not others of these "criminals."
Whether these disparate arrests are due to overt racial bias on the part of police isn't really relevant here. They may be, of course, and in some cases likely are. So too, they may be the result of facially race-neutral (i.e. "colorblind") policy, which simply prioritizes police presence in higher crime neighborhoods. Because of higher crime rates in poorer black neighborhoods (due to the significant correlation between economic conditions in low-income spaces and rates of criminal offending), police may simply be in a position to more readily uncover drug use in black communities as opposed to white ones. But whatever the case, the outcome is the same: arrest and conviction records say little about who is actually committing this particular kind of offense.
This matters to the issue of whether companies can claim to have a legitimate interest in conducting background checks and blanket excluding those with records (especially for something like drugs), from employment. After all, if black drug conviction rates do not reflect higher rates of drug offending, then companies cannot reasonably conclude that they are accurately screening out drug users from their employ by way of these policies. Plenty of the white folks they hire will be (or will have been in recent years) drug users. But because of the disparate focus of the justice system -- whether intentional or not -- they will not have come to the attention of the courts. So companies that use these policies in this way will merely further the initial iniquities of a racially-disparate justice system, while having no reasonable expectation that in so doing, they have truly reduced the number of drug users on their payrolls.
Even for other crimes, where rates of offending truly are higher among blacks -- again, because of the connection between economic conditions in certain communities and crime -- these offending disparities should not lead us to shrug off the injustice visited upon black offenders, especially, by such screening practices. Crimes like robbery -- even armed robbery -- which are indeed committed at higher rates by African Americans than whites, should not, one would hope, prevent someone years later from being able to procure a job. A job involving firearms? Sure. A job as a bank security guard? OK, that too. But a job at a warehouse, or driving a truck, or selling jeans at a mall department store? Really?
Contrary to conservative propaganda (and perhaps conventional wisdom), prior offending does not necessarily predict future criminality. One major study of people with felony convictions, found that 18-year-olds arrested for burglary had no greater risk for another arrest than any other person their age after 3.8 years had passed without another incident (4.3 years for aggravated assault). And 20-year olds arrested for robbery are no more likely than anyone else their age, after four years, to re-offend.
In addition, according to a study in Illinois that followed 1,600 individuals recently released from state prison, only 8 percent of those who were employed for a year went on to commit another crime, compared to the state’s 54-percent average recidivism rate. In other words, it is precisely having a job that prevents re-offending, and not having steady employment that contributes to it. Aggregate figures often bandied about by those who defend the use of background checks, and which suggest that ex-offenders are likely to commit future crimes, neglect the fact that the very reason for that re-offending is the difficulty such persons have finding legitimate employment. There is simply no evidence at all to suggest that ex-offenders who are gainfully employed re-offend at rates that would justify their blanket exclusion from employment opportunities.
Finally, on this point, the time frames considered relevant to some employers -- no record for seven years, or ten, or five, or ever -- are utterly arbitrary and reflect no actual research as to how many years of non-recidivism are needed before the risk of re-offending falls enough to justify an employer taking a chance on someone with a record. Why seven years, rather than 6.5 or 7.2? Why ten, rather than 11.3 or 13.1, or 9.8? Unless it can be shown that these policies -- not in general but in their specificity as applied, with these random and arbitrary timelines -- are manifestly related to a legitimate business interest, the fact that they produce such disparate racial impact seems inherently unjust and violative of existing civil rights law.
Affluent Whites Without Records are Just as Unethical/Criminal as Poor Folks of Color With Records
Importantly, not only will the over-reliance on criminal background checks by employers screen out many capable, honest workers whose past mistakes say nothing about their current character and behavior, so too, they will fail to catch many unethical -- even criminally inclined -- persons whose affluence and whiteness largely insulate them from involvement in the justice system. Not merely white, affluent drug users whose narcotics possession never comes to the attention of authorities -- as mentioned above -- but also affluent whites whose predatory and unethical behavior, from Wall Street scammers to your local corporate executive, remains undetected, or if detected, unpunished.
Contrary to popular belief, ethics and economic status have little relationship to one another. According to a recent study, the affluent are actually more likely than others to engage in unethical behavior, especially on the job. Specifically, researchers discovered that the rich -- few if any of whom will have criminal records, and thus, none of whom would likely fail a background check during their next job search -- are "more likely to exhibit unethical decision-making tendencies, more likely to take valued goods from others, more likely to lie in a negotiation…and more likely to endorse unethical behavior at work."
The relative privilege and security enjoyed by upper-class individuals give rise to...a prioritization of the self and one's own welfare over the welfare of others...This is likely to cause someone to be more inclined to break the rules in his or her favor, or to perceive themselves as, in a sense, being 'above the law,'...and therefore become more prone to committing unethical behavior.Further research has discovered that the wealthy are uniquely likely to lack empathy for others, and in the case of some, like high-power stockbrokers, they may literally be borderline psychopaths in terms of their personality structures, values and behavioral tendencies. But, ya know, since they mostly won't have a record, presumably they would make better employees than someone who was once arrested for a dime bag of weed.
It doesn't take a sophisticated understanding of the last decade or so of financial misconduct amongst the nation's rentier class to realize that plenty of ethically challenged folks can manage to avoid an arrest or conviction record, owing nothing to whether or not they engage in acts that could trigger either or both. The American system of law intrinsically favors the rich (and white), precisely because they are seen as "too big to jail," as with the hedge fund manager who seriously injured a bicyclist in Colorado a few years ago and then fled the scene, but who avoided a felony conviction when the D.A. agreed to charge only a minor misdemeanor, because a felony conviction might jeopardize the man's job and thus, the well-being of his wealthy clients.
Indeed, corporations and their executives routinely engage in fraudulent activities, but rarely if ever do those responsible get arrested, prosecuted and convicted of anything: indeed even the fines they are forced to pay are but a pittance relative to their profits, making crime, on the part of the well-off, quite literally pay.
Limiting Employment for Ex-Offenders is Bad for Society
Finally, of course, is the simple reality that making it harder for ex-offenders to find remunerative employment is perhaps the most impractical, socially destructive concept ever conceived. Since the vast majority of ex-offenders will, at any given moment, be free and in need of legitimate work to support themselves and their families, upon what rational basis would it make sense to erect barriers to making that happen? Current estimates suggest there are at least 12-14 million ex-felons alone who are working age in the U.S., and upwards of 65 million persons in all with some kind of arrest and/or conviction on their record.
That society is hardly well-served by saying to these persons, "Too bad! You shouldn't have done the crime!" -- which seems the operative, perpetually juvenile ventilation offered by conservatives whenever the subject is raised -- should be obvious. It is much like the equally short-sighted bombast offered up regarding social safety net programs that benefit single moms and their children; as in, "You shouldn't have had that baby if you couldn't take care of it!" Which proclamation, of course, does nothing to change the fact that said baby does exist, and needs to eat, however irresponsible some may find his or her parents. This kind of "take that!" thinking, seemingly endemic to conservative thought -- the rhetorical equivalent of an upturned middle finger raised perpetually in defiance of anything resembling human compassion -- sufficiently indicates the way in which meanness and even cruelty have consumed the right, to the exclusion of critical thought.
Indeed, it is not only that ex-offenders unable to find work will be more likely to re-offend (something you'd suspect would lead conservative "law and order" types to think better of practices barring employment for those with records), but also, research finds that such barriers to productive work have economic consequences for the entire society. According to the Center for Economic and Policy Research, even though ex-offenders are generally not quite as productive in the aggregate as their conviction-free peers (because they tend to have less education, for instance), the nation may still lose upwards of $57 billion in output annually because of the difficulty ex-felons alone have (to say nothing of those with misdemeanor records) finding jobs in the above-ground economy.
If one didn't know better -- or do we in fact know better? -- one might think the system was intended to trap ex-offenders in a crime cycle, thereby returning them to jail or prison perpetually, either as a matter of social control, as a way to keep the public constantly afraid of being victimized, or as an alternative to actually developing an economy capable of employing everyone at a livable wage. After all, with mass incarceration and criminalization, the nation need not concern itself with full employment, or adequate housing availability, or comprehensive educational opportunity: it can simply substitute prison and prison labor for all that instead.
Michelle Alexander has explained the dilemma thusly:
What are people released from prison expected to do? How are they expected to survive? Can't get a job, locked out of housing, and even food stamps may be off limits...Under these circumstances, what, realistically, do we expect people to do? Perhaps the better question is: What does this system seem designed to do? As I see it, it seems designed to send people right back to prison, which is what happens about 70% of the time. About 70% of those released from prison return within a few years, and the majority of those who return in some states do so in a matter of months because the challenges associated with mere survival on the outside are so immense.With so much at stake, for the EEOC to finally be getting serious about challenging policies that contribute to this human and economic carnage seems fitting, whether or not the nation's hateful and spiteful voices of vengeance on the right understand it.
As of course, they won't.