“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”
– Martin Luther King
In case you missed it, the U.S. Equal Employment Opportunity Commission last week handedÂ down new â€œEnforcementÂ Guidanceâ€ that greatly limits the extent to which employers can consider arrest and conviction records of job applicants, principally on the grounds that doing so can have a â€œdisparate impactâ€ on the basis of race and ethnicity.
Martin Luther Kingâ€™s dream has now been turned completely on its head: The government keeps a careful eye on race and forbids judgment about character.
There are certainly circumstances where employers might be willing to consider hiring someone with a criminal record, and circumstances where they might not. But where there is no consideration of race, why should the federal government be second-guessing those decisions, which the employer (and the applicantâ€™s fellow employees) will have to live with?
Businesses are, understandably, not happy about all this: â€œMany in the business community have complained that the Guidance was rushed through with no public rulemaking or the associated process for public comment â€” a refrain recently echoed by the Senate Appropriations Subcommittee responsible for EEOC funding and Commissioner Barker in her dissent.â€ I have been a frequent critic of the disparate-impact approach, but really â€“telling employers when they can and canâ€™t consider criminal records?