By Kevin Connell, Founder & Chairman, AccuScreen.com
The five-member EEOC Commission is tasked with the job of administering Title VII of the Civil Rights Act, and in their most recent meeting on April 25, the Commission itself was battling within itself over why they were even meeting that day to vote on New Guidance on Criminal Background Checks , it was Commissioner against Commissioner. As Commissioner Barker asked: “So why is this (New Guidance) even on the agenda today?”
Maybe it was because it was Democratic Commissioner Stuart J. Ishimaru’s last EEOC meeting? Ishimaru had made his resignation announcement weeks before the April 25th meeting. In fact, you got the sense from the meeting, that it was not an official U.S. federal agency meeting taking place, but a “going away party” for Mr. Ishimaru. Although Ishimaru was leaving the EEOC, he was not leaving Washington, as the 55 year old with the long pony tale has worked his entire life in Washington, he was just leaving one agency for another, Ishimaru’s income is still 100% taxpayer-funded. On April 30th, it was announced that Ishimaru was now the head of the Consumer Financial Protection Bureau (CFPB) as the head of the newly established Office of Minority & Women Inclusion (OMWI).
The EEOC was asked by the very committee responsible for their funding to hold off and make no changes. It was very clear, the EEOC was told to hold off and allow a 6 month period for Americans and American employers to provide comments and feedback on any new proposed changes to guidance that the EEOC was contemplating. The committee that determines EEOC’s funding each year is under the direction of Chairs Senator Barbara A. Mikulski (D-MD) and the Kay Bailey Hutchison (R-TX) and the Senate Appropriations committee subcommittee on commerce justice and science.
In addition, in a letter to the Office of Management Control (OMB), the U.S. Chamber of Commerce asked the that the OMB require the EEOC to allow a review by the OMB and public input before the EEOC prepares to issue any new guidance. There was also a request made by nearly 50 American Business Associations to the EEOC asking the same, a public review and public commenting period. If this all seems a simple and reasonable request, it’s because it is, it’s all very reasonable, and it is very little to ask for an agency that is supposed to be serving the public. However, it made sense to everyone, except the EEOC, they had their own agenda.
The EEOC chaired by Democratic Commissioner Jacqueline A. Berrien, “gave the bird” to everyone and went ahead and issued their new guidance at the objection of everyone on April 25. And here is the dirty little secret that the EEOC doesn’t want you to know about, and it’s cleverly buried in its 52 page guidance of confusing jargon, contracticting language, vague instructions, and Washington double-speak. Pay close attention to these words that are written inside the document:
“The Commission recommends that employers not ask about (criminal) convictions on job applications.”
Said another way, the agenda of some that are on the Commission is to not ask about or run a criminal background check on anyone for any reason.
And there it is, the secret agenda of the EEOC. The EEOC would ban background checks if they could, not because it makes any sense, business or otherwise, it just make sense to them. This is not true of everyone with the EEOC, certainly not anyone who has ever worked for a small business like dissenting Commissioner Constance S. Barker, she is one of the few who have any “real world” business experience on the EEOC Commission. However, others in the EEOC seem to have the opinon that you don’t really need to run a criminal background check on anyone and I include the recently departed Commissioner Ishimaru as one who holds this opinion. I wonder if Mr. Ishimura would hold the same opinion if it was him hiring someone to watch over his own son or daughter? Or if he was about to to hire a caretaker for an aging parent or grandparent? I presume that the EEOC could not legally use the word ban in their new guidance, so they did what they thought was the next best thing, they would just “recommend.” It is the only time that the word “recommend” is used in the entire 52 page document. Mind you, the EEOC has no legislative powers, they are not lawmakers, they are not from the legislative branch, and you will see this topic being argued in the transcript below of Commissioner Barker.
The other interesting observance that day on that April 25th meeting was Chairman’s Berrien’s remarks at the very beginning, she made it a point to acknowledge that is was Administrative Professional’s Day that day and Administrative Professional’s week, the unofficial secular holiday observed in some parts of the world.
What’s interesting was not for what she said, but for what she did not say that morning, and that particular week; you see, that week was April 22-28 2012, and that week commemorates National Crime Victims’ Rights Week. As in society much of the focus is on the those who have committed crimes and none given to the victims; millions of crime victims and their families and friends seem to forgotten, their voices fallen on deaf ears, the crime victims are not even acknowledged during the very week set aside to honor them – National Crime Victims’ Rights week. You could say that the EEOC is guilty of practicing the kind of discrimination that the agency was created to prevent.
By Kevin Connell, CEO & Chariman, AccuScreen.com
The following is a Transcript from the EEOC Commission Meeting: April 25 2012 Washington, D. C. of the Statement & Vote from Commissioner Constance S. Barker
“I object to and will vote against the new guidance for criminal background checks for four fundamental reasons:
First and foremost, I object to the utter and blatant lack of transparency in the approval process. The proposed revision before us today represents a major shift in the advice that we have given the American public for the past 22 years. Yet we are about to approve this dramatic shift in our interpretation of the rights of job applicants in the obligations under Title VII without circulating it to the American public for review and discussion. There is absolutely no justification for totally excluding the American people from this process or for this blatant failure to be transparent in how we conduct business. I am devoted to the issue of civil rights and the work of this commission. But if we vote to approve this guidance today, how can we expect the American people to have confidence that this agency operates openly and with full transparency. We are public servants, we work for the American people, what could possibly justify keeping them from knowing what is in this document before we approve it? This proposed new guidance which in reality is a kind of regulation has tremendous implications for Americans. It is exactly the type of policy shift that we should share with the American people. Ask them to take a look and tell us what they think, have we forgotten anything? Have we explained things well or is it confusing? And most importantly, how will this impact you? But we didn’t do that. Instead the document was rapidly brought to a vote without the American people ever having a chance to see what was in it. This is just plain wrong. There are people in this commission room today and throughout America who have considerable expertise in the subject of guidance this addresses, yet we are about to give approval without ever letting any of these experts or the public at large see a single word that is contained, and we are approving it without submitting it to OMB for expert review that begs the question, WHY? Why don’t we want America to see what is in this document before we make it final. We should have spent months reviewing and discussing this with the public as we have other regulatory and subregulatory documents. Yes, the commission did have a meeting on background checks and heard form stakeholders on the general subject of the pros and cons of conducting criminal background checks.
But seeking general input is a far cry from sharing what is actually in the actual proposed revised guidance. As soon as the revised guidance was drafted, the public was shut out.
Two, here is my second concern; it is my understanding that the Senate Appropriations committee subcommittee on commerce justice and science, the committee that determines our funding each year under the direction of Chairman Senator Barbara A. Mikulski (D-MD) and Kay Bailey Hutchison (R-TX) in the report attached to the appropriations bill specifically address their concerns about the haste with which the commission approved changes to the current criminal background check guidance and specifically instructed the commission to
a.) Encage stakeholders in discussion about the intended changes to the criminal background check guidance and
b.) Circulate any proposed changes to the guidance for public input for at least 6 months before bringing it before the commission for a vote.
When the Senate Appropriations committee, the committee that controls our funding attaches to the bill that will determine our funding specific instructions to hold off on taking any action on this guidance until we have circulated a copy to the public for at least 6 months, it seems to me that we should take that seriously. So why is this even on the agenda today? Are we seriously going to ignore this directive from the committee that provides our funding? Especially, and here’s the irony, there is absolutely no need to take action on this today or any time in the near future. What is the big rush to approve this guidance? What would justify ignoring a Senate Appropriations directive and ignoring our obligation to be transparent with the American people? There have been no changes in Title VII, no Supreme Court decisions that would compel a single change to our current guidance. In contrast, our guidance on the use of arbitration agreements and employment contracts has been out of date since the first Supreme Court decision on that in 1991. As far as I know, there is no effort being made to circulate a revision of that guidance or bring it before the commission for a vote.
Thirdly, I object to the guidance because it so obviously exceeds rescind procedural regulations we have no… < note from transcriber: unable to transcribe a couple or few words here – audio becomes inaudible for a second or two>… we are an enforcement agency; we have the authority to issue, amend, and rescind procedural regulations. We have no authority to make substantive changes to the law by issuing guidance that goes beyond what is contained in the statutes as interpreted by the court. Our job is to call congressional intent interpretations, not make new law. No matter how well intentioned we may be. No matter how much a change in law may be warranted. We simply lack the authority to make those changes to the issuance of guidance. It is congress’s job, not ours to weigh the pros and cons proposed in legislation and approve or disapprove it in congress. We are not part of the legislative branch. It is the job of the court to interpret the laws that congresses pass. We are not the courts; we are not part of the judicial branch. It is our job to explain what is already the law, not to expand it, no matter how much some of us may want Title VII to provide additional protection. We cannot use our authority to issue new guidance to create new rights of protection that Title VII does not provide; if we think Title VII should be expanded, we should make our concerns known to congress, not take it upon ourselves to do congress’s job.
Finally, I oppose the guidance because of the reach and impact it will have on American Businesses. Last night, I tried to read the guidance as a business owner would read it. What I came up with over and over again was if I were a business owner, no matter what business I was in, I would never again conduct another criminal background check on a potential employee unless I was required to under Federal law. Not just state law, but Federal law. I understand all of the well-intentioned reasons for drafting the revised guidance but I question whether it will achieve what it attempts to achieve. I am afraid the reality is the only real impact the new guidance will have is to scare business owners from ever conducting criminal background checks thus the unintended consequences will be each of the business owners we all agree should be conducting criminal background checks simply will not, why should they? The guidance tells them they are taking a tremendous risk if they do. The guidance tells them that even if they are no discriminating and if they are treating all races and ethnicities equally, they could be found guilty of unintentional discrimination under disparate impact theory. All this new guidance does is puts American business owners between a rock and a hard place, conduct criminal background checks to protect employees and members you serve then risk having to defend your actions. Don’t conduct criminal background checks and you take the risk an employee or member of the public will be harmed. This is no help to American business owners.
In summary, I object to the utter lack of transparency in the development of this guidance, I object to the inexcusable way the public has been intentionally shut out of the process. I object to the unnecessary haste to which this document has been pushed through and I object to the burden it places on business owners. I strongly oppose the guidance and will vote against it. Thank you.”
TRANSCRIPT of Commissioner Constance S Barker as she VOTED NO on Proposed Guidance on Employer’s Use of Arrest and Conviction Records
