Gail Heriot, a professor at the University of San Diego School of Law and a congressional appointee to the U.S. Commission on Civil Rights, spoke on Friday at a Federalist Society panel entitled “Who Benefits from Affirmative Action and Race and Gender Consciousness?” In the middle of her speech, Heriot addressed new guidance from the Equal Employment Opportunity Commission earlier this year that under Title VII of our civil rights laws, an employer may not deny a job to someone based on a past conviction that was job-related. Over 65 million Americans have a criminal conviction, and the numbers skew disproportionately toward minorities.
Heriot blasted the new guidelines because, as she argued, business owners who cannot check an applicant’s criminal background will presumptively dismiss “high risk” pools, such as black applicants for low-skilled jobs, and only hire the African American “who is the son of a dermatologist in Bethesda.”
In other words, Heriot argues that guidelines combating employment discrimination will actually cause employers to become more brazenly racist in their hiring patterns. The way to fight that situation, in her estimation, is not to outlaw racist hiring practices, but to ditch anti-discrimination efforts.
Full transcript below:
HERIOT: Under the EEOC’s guidance, it is illegal, in most cases, for an employer to decline to hire an applicant because he has a criminal record. If there’s one matter of record about a person that lets others know something about the content of his character, it is his criminal record. The idea appears to have been to benefit young black males, who are more likely to have criminal records than, say, elderly Asian females.
But a policy like this can backfire. There’s already published, empirical evidence that young black males may be worse off under the new guidance. If an employer cannot check, he may err on the side of caution and not hire from pools that he may believe – rightly or wrongly – are high risk.
Imagine a small businessman who has ten jobs, let’s say, that are really good, entry-level jobs, don’t require any particular skills. And in the past, he’s hired recent high school grads without skills, and even some high school dropouts. And as a result, maybe in the past, out of the ten hires, maybe even eight were young African American males. When that small businessman looks at the new guidance and says, “Okay, I cannot check on these criminal backgrounds. I can’t make a criminal background check anymore like I used to. Maybe even I was disobeying the last guidance.” He may decide he can’t take the risk, and so he hires 30 part time employees instead – college students from the nearby elite university.
And now, instead of a majority of African Americans males, maybe there’s only one or two in that pool, maybe there’s just one African American male that gets that part time job now. And he’s an African American male who is the son of a dermatologist in Bethesda.