Anti-Discrimination Rule that Discriminates

When scholars enthuse over laws and regulations, they are often the last to notice the unintended consequences of the statutes and rules. “Why is every attempt that involves aggressive enforcement of civil rights laws against your views?” Columbia law professor Theodore M. Shaw asked at a Federalist Society meeting at the Mayflower hotel here in Washington last week.

Shaw refused to entertain the possibility that the enforcement he desires may harm the very people the policies are designed to protect. For example, in April 2012, the U. S. Equal Employment Opportunity Commission urged employers not to use criminal background checks in hiring new employees.

“Former-offender advocacy groups welcomed the 2012 Guidance for its virtual prohibition on blanket exclusionary policies and its strongly suggested consideration of applicants and employees with criminal records of many kinds on a narrowly drawn or case-by-case basis,” the U. S. Civil Rights Commission found. “These records included arrest records only, criminal citations, misdemeanor convictions, expungements, and felony convictions, among others.”

“Speakers representing employers discussed whether the majority of employers, who for legal, statutory mandate, business and/or safety reasons must exclude applicants with particular criminal convictions, might as a result reduce hiring overall, increase automation, or move some jobs overseas. Some thought that such reduction in hiring of entry-level workers would likely have the unfortunate effect of disproportionately lowering job opportunities and reducing employment among blacks and Hispanics.”

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