April 17, 2018

DAMNED IF YOU DO, DAMNED IF YOU DON’T: Two weeks ago, Target settled a class-action lawsuit filed by the NAACP Legal Defense Fund for $3.74 million. The claim was that by asking job applicants about their criminal records, Target was discriminating against African Americans and Hispanics, since they are more likely to have a criminal record.

Meanwhile, in response to public pressure, Uber is upping its efforts to check into its drivers’ criminal backgrounds.

Will Uber now become a lawsuit target? Maybe.

This is an area of the law that really jumped the track. The EEOC’s policy is so vague that employers frequently have no idea what they can or cannot do. But more important, declining to hire someone because he has committed crimes isn’t race discrimination. The EEOC is not supposed to have jurisdiction under Title VII unless the employer has discriminated on the basis of race, color, religion, sex or national origin.

Alas, however, the “disparate impact” theory of liability (upon which the EEOC and the NAACP Legal Defense Fund rely) is well-entrenched in the law. For the skinny on how that came to be and why it is a terrible idea, read my Statement on the EEOC’s Criminal Background Check Policy.

(Remember when MLK said he looked forward to the day when his children would be judged by the content of their character rather than their skin color?   Judging job applicants by their criminal record is as close to judging them by the content of their character as we mortals can hope to get. Sure, some people deserve a second chance, but shouldn’t that be up to the employer?)

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