Biden Admin Wants To Force Companies To Hire Criminals In The Name Of Equity

Federal regulators recently launched a lawsuit against popular convenience chain Sheetz that could have implications for whether businesses will be able to screen applicants for criminal convictions.

The Equal Employment Opportunity Employment Commission (EEOC) suit, announced April 18, alleged that Sheetz discriminated against minority applicants by screening all job seekers for criminal convictions, arguing that doing so disproportionally targets black, Native American and multiracial applicants. Many businesses have already stopped screening employees based on earlier guidance and pressure from regulators, experts told the Daily Caller News Foundation.

“The EEOC complaint filed against Sheetz Inc. is just another example of leftist protections for certain classes of people,” Allen West, executive director of the American Civil Rights Union, told the DCNF. “In this case, the EEOC believes that it must force a private sector employer to place the Biden administration’s ideological agenda above what is deemed best for the company and its employees. Sheetz Inc. has every right to screen applications and deny consideration to those with criminal backgrounds.”

The suit argues that Sheetz is violating Title VII of the Civil Rights Act under a provision that prevents “disparate impact,” the legal idea that rules can harm certain protected groups more than others while on their face being neutral. The EEOC does not allege that Sheetz was motivated by race in its job applicant screening process.

“Federal law mandates that employment practices causing a disparate impact because of race or other protected classifications must be shown by the employer to be necessary to ensure the safe and efficient performance of the particular jobs at issue,” Debra Lawrence, regional attorney for the EEOC’s Philadelphia district, said in the announcement of the suit. “Even when such necessity is proven, the practice remains unlawful if there is an alternative practice available that is comparably effective in achieving the employer’s goals but causes less discriminatory effect.”

Dan Morenoff, lawyer and executive director at the American Civil Rights Project, told the DCNF that he agrees with the harmfulness of the suit from the EEOC, but points out that its broader effect could be limited because federal regulators have taken this stance before, which has already incentivized employers to avoid screening for criminal convictions to avoid a lawsuit.

“The two most important things to know here are that the EEOC’s position: (a) is crazy and destructive; but (b) also not new — they’ve taken this position in theory for years,” Morenoff told the DCNF. “It’s bad policy and bad law, but it probably won’t change much across the business world as a whole, just because most companies already have found ways to deal with the agency’s demands. Still, we can hope that if they insist on litigating this, Sheetz may prevail. The Supreme Court’s unanimous decision last week in Muldrow may have opened the door to a restoration of Title VII to reflect its actual statutory language and dispense with the decades-long mistake of disparate-impact analysis.”

The Supreme Court ruled unanimously in mid-March in Muldrow v. City of St. Louis, that Title VII protected against discriminatory job transfers even if the transfer did not create a significant disadvantage, according to The New York Times. The suit centered around Jatonya Muldrow, an employee of the St. Louis Police Department’s Intelligence Division, who was transferred to a different position within the department, retaining the same rank and salary but having less favorable work.

The EEOC has long held the opinion that the use of criminal history should not be a factor when hiring, issuing guidance in 2012 that asked employers to either exclude criminal conduct considerations or use an approach that takes into account the nature of the crime, the time elapsed since the conduct and the nature of the job being applied for when hiring.

Proponents of limiting the use of conviction histories in hiring claim that screening job applicants for criminal records deprives individuals of employment opportunities, creating a stigma that limits their ability to successfully reenter society. Several states have already implemented their own restrictions on the practice and the federal government banned the practice in 2019.

The EEOC has been emboldened in recent months following the confirmation of Kalpana Kotagal as EEOC commissioner last year, breaking the stalemate on the board and giving Democrats a 3-2 majority. Prior to Kotagal’s confirmation, the commission was stuck in gridlock on issues like artificial intelligence bias in hiring, LGBT bathroom guidance and diversity, equity and inclusion policies.

The EEOC issued a final rule Monday under the Pregnant Workers Fairness Act requiring that employers give women time off to attend and recover from abortion procedures.

“Yes, I do believe in redemption, but it is not the business of the federal government to risk the safety and security, notwithstanding that of other employees, of a corporation,” West told the DCNF. “The last time I checked, one could still be denied enlistment in the U.S. military for a criminal background, certainly drug use and abuse. This once again evidences the overreach of the federal government, last time I checked, the US Constitution did not have any enumerated power under Article II, Executive Branch, to force employers to hire individuals with criminal backgrounds. Oh, that’s right, it is all about equity, equality of outcomes, and seeing people not based upon the content of their character but rather the color of their skin.”

The EEOC and the White House did not immediately respond to a request to comment from the DCNF.