Wednesday, February 20, 2013
Perform criminal background checks at your peril
Should it be a federal crime for businesses to refuse to hire ex-convicts? Yes, according to the Equal Employment Opportunity Commission, which recently released 20,000 convoluted words of regulatory "guidance" to direct businesses to hire more felons and other ex-offenders.
In the late 1970s, the EEOC began stretching Title VII of the 1964 Civil Rights Act to sue businesses for practically any hiring practice that adversely affected minorities. In 1989, the agency sued Carolina Freight Carrier Corp. of Hollywood, Fla., for refusing to hire as a truck driver a Hispanic man who had multiple arrests and had served 18 months in prison for larceny. The EEOC argued that the only legitimate qualification for the job was the ability to operate a tractor trailer.
U.S. District Judge Jose Alejandro Gonzalez Jr., in ruling against the agency, said: "EEOC's position that minorities should be held to lower standards is an insult to millions of honest Hispanics. Obviously a rule refusing honest employment to convicted applicants is going to have a disparate impact upon thieves."
The EEOC ignored that judicial thrashing and pressed on. Last April, the agency unveiled its "Enforcement Guidance on the Consideration of arrest and Conviction Records in Employment Decisions," declaring that "criminal record exclusions have a disparate impact based on race and national origin."
Though blacks make up only 13% of the U.S. population, more blacks were arrested nationwide for robbery, murder and manslaughter in 2009 than whites, according to the FBI. The imprisonment rate for black men "was nearly 7 times higher than White men and almost 3 times higher than Hispanic men," notes the EEOC. These statistical disparities inspired the EEOC to rewrite the corporate hiring handbook to level the playing field between "protected groups" and the rest of the workforce.
Most businesses perform criminal background checks on job applicants, but the EEOC guidance frowns on such checks and creates new legal tripwires that could spark federal lawsuits. One EEOC commissioner who opposed the new policy, Constance Barker, warned in April that "the only real impact the new Guidance will have will be to scare business owners from ever conducting criminal background checks. . . . The Guidance tells them that they are taking a tremendous risk if they do."
If a background check discloses a criminal offense, the EEOC expects a company to do an intricate "individualized assessment" that will somehow prove that it has a "business necessity" not to hire the ex-offender (or that his offense disqualifies him for a specific job). Former EEOC General Counsel Donald Livingston, in testimony in December to the U.S. Commission on Civil Rights, warned that employers could be considered guilty of "race discrimination if they choose law abiding applicants over applicants with criminal convictions" unless they conduct a comprehensive analysis of the ex-offender's recent life history.
It is difficult to overstate the EEOC's zealotry on this issue. The agency is demanding that one of Mr. Livingston's clients—the Freeman Companies, a convention and corporate events planner—pay compensation to rejected job applicants who lied about their criminal records.
The biggest bombshell in the new guidelines is that businesses complying with state or local laws that require employee background checks can still be targeted for EEOC lawsuits. This is a key issue in a case the EEOC commenced in 2010 against G4S Secure Solutions after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.
G4S provides guards for nuclear power plants, chemical plants, government buildings and other sensitive sites, and it is prohibited by state law from hiring people with felony convictions as security officers. But, as G4S counsel Julie Payne testified before the U.S. Commission on Civil Rights this past December, the EEOC insists "that state and local laws are pre-empted by Title VII" and is pressuring the company "to defend the use of background checks in every hiring decision we have made over a period of decades."
The EEOC's new regime leaves businesses in a Catch-22. As Todd McCracken of the National Small Business Association recently warned: "State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers' homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons."
At the same time that the EEOC is practically rewriting the law to add "criminal offender" to the list of protected groups under civil-rights statutes, the agency refuses to disclose whether it uses criminal background checks for its own hiring. When EEOC Assistant Legal Counsel Carol Miaskoff was challenged on this point in a recent federal case in Maryland, the agency insisted that revealing its hiring policies would violate the "governmental deliberative process privilege."
The EEOC is confident that its guidance will boost minority hiring, but studies published in the University of Chicago Legal Forum and the Journal of Law and Economics have found that businesses are much less likely to hire minority applicants when background checks are banned. As the majority of black and Hispanic job applicants have clean legal records, the new EEOC mandate may harm the very groups it purports to help.
Naturally, the EEOC will have no liability for any workplace trouble that results from its new hiring policy. But Americans can treat ex-offenders humanely without giving them legal advantages over similar individuals without criminal records. The EEOC's new regulatory regime is likely to chill hiring across the board and decrease opportunities for minority applicants.
A curb on a free Press never seen in a democracy: Leading peer attacks Labour attempt to shackle media
Labour-inspired proposals on media law would curb the free Press in a way ‘never seen in any democratic country’, a senior peer warned last night.
Eminent QC Lord Lester said controversial amendments to the Defamation Bill pushed through with Labour support this month would damage free speech and break European human rights laws if they were allowed to stand.
He accused Labour of ‘hijacking’ the legislation in an attempt to force the Government to implement Lord Justice Leveson’s plans for regulation of the Press in the wake of the phone hacking scandal.
Ministers are said to be so concerned by the proposals that the entire piece of legislation could be abandoned.
But Lord Lester, the architect of the Defamation Bill, said this would be a travesty, as vital reforms of Britain’s notorious libel laws would also be lost.
His intervention comes amid growing Government anxiety about an amendment pushed through the Lords by 272 votes to 141 earlier this month.
The amendment, put forward by Labour-supporting film director Lord Puttnam, would introduce an arbitration service for members of the public wronged by the Press.
The legislation would mean that newspapers that did not join the system could be punished by courts awarding potentially ruinous damages and costs.
Crossbench peer Lord Skidelsky, who is backing the move, yesterday suggested the arbitration system could help prevent the publication of ‘things which may be true, but whose publication has no sufficient reason’.
He suggested newspapers should face exemplary damages if they failed to get approval from the new regulator before publication.
But Lord Lester said this form of ‘prior restraint’ – which was demanded by former Formula One boss Max Mosley – was only used in a handful of former Soviet states.
Lord Lester said the impact of the Puttnam amendments would be to introduce ‘a form of coercion I have not seen in any democratic country’.
He told the Daily Mail: ‘The scheme they are recommending would be totally incompatible with human rights and free speech. Instead of having self-regulation, which I believe strongly in, you would have a coerced system of arbitration.’
Lord Lester, a Liberal Democrat peer, said the amendment was ‘inappropriate’ as it tacked controversial privacy issues on to legislation on libel reform which has cross-party support, including the stated support of Labour.
He added: ‘They have taken the Bill hostage in order to put pressure on the party leaders and the Press over the implementation of the Leveson reforms.
'But Leveson wasn’t interested in libel law, he was interested in privacy.
‘I very much hope that when the Bill comes back to the Commons we can get agreement across the parties to release the Bill from the limbo it is now in so that we can get these reforms onto the statute book.’
The Defamation Bill, which has all-party support, would bring in long-overdue reforms to Britain’s antiquated libel laws.
The political parties are still locked in stalemate over how to implement Lord Justice Leveson’s reforms.
Labour is demanding new laws to back up a new independent Press regulator.
But David Cameron has warned that legislation could prove to be the thin end of the wedge and allow future politicians to interfere with Press freedom.
He wants a new regulator to be established by Royal Charter.
Don't muzzle our 'cruel' lawyers - I'll need one to keep me out of jail
By Peter Hitchens
I genuinely fear that I will go to prison before I die, for writing or saying something that is no longer allowed. I have met quite a lot of people who hate me and my views so much that they would very much like this to happen.
Our society is already a hundred times more intolerant than it was when I was born. In recent years, police officers have actually questioned prominent people because of opinions they have expressed, a thing unthinkable even 30 years ago.
Of course the main threat to free speech is not prison but the loss of your job, as anyone in the public sector knows very well.
But the limits on what can be said shrink all the time, and the powers of the police and prosecutors grow.
At some point these two curves may meet, and I may find myself on the receiving end of one of those nasty, well-publicised dawn raids that the police like so much.
My only hope, if this happens, will be in the courtroom. That is one reason why I urge you not be seduced by calls to limit the freedom of defence lawyers.
Witnesses do lie and make things up. Juries are often pretty feeble and too easily led. Since they abolished the property qualification and brought the age limit down to 18 (it may soon be 16), the chances of having your case heard by educated or experienced people have shrivelled.
And since the disgraceful introduction of majority verdicts, one or two wise jurors cannot hold out for long against a lazy, bored majority who think there’s no smoke without fire, and want to go home.
So unless defence lawyers have full freedom to question prosecution witnesses, the defendant in a modern British trial might as well go straight to jail and get on with his sentence.
Like any civilised person, I grieve at the death of Frances Andrade, who killed herself after giving evidence against Michael Brewer, during which she was vigorously cross-examined.
May she rest in peace. But I object strongly to the way in which many people have used this event to argue for limits on the freedom to cross-examine.
We do not really know why she took her life, though I would point out that, like a frightening number of suicides, she was taking so-called ‘antidepressant’ drugs, which are known in some cases to promote suicidal feelings in those who take them.
Think of this another way. A trial is not just an argument after which everyone goes home. If the accused is found guilty, he goes to prison and – if he has until then been a respectable person, who will suffer greatly in jail – his life is more or less at an end. Some people deserve this. But their guilt must be proved first. If trials become mere formalities, in which we go through the motions of justice while forgetting its principles, we will be a tyranny.
Attempt to kill Danish Free speech advocate
The assassin came to his home dressed as a postman. When the historian and journalist Lars Hedegaard opened his front door, the man — whom Lars describes as ‘looking like a typical Muslim immigrant’ in his mid-twenties — fired straight at his head. Though Hedegaard was a yard away, the bullet narrowly missed. The mild-mannered scholar (70 years old) then punched his assailant in the head. The man dropped the gun, picked it up and fired again. The gun jammed and the man ran off. More than a week later, he has yet to be found.
Hedegaard has had to leave his home and is under police protection at an undisclosed location. A week after the attempt to murder him we manage to speak by phone.
‘We have had quite a few attempts to silence people here. [The Danish cartoonist] Kurt Westergaard was almost killed a couple of years ago by a man from Somalia who came to his house and broke into it with an axe and tried to kill him. We still have prominent politicians under police guard, the former leader of the Danish People’s Party Pia Kjærsgaard, and also the former Conservative politician Naser Khader, who is of Syrian descent, a liberal Muslim. And now me.’
A well-known figure in Denmark, Hedegaard’s profile rose after the mainstream media’s capitulation in the wake of the Mohammed cartoons affair. He set up the Free Press Society, an organisation which campaigns for the rights of journalists and cartoonists to express themselves without fear of murder. When I addressed them in Copenhagen a couple of years ago, I was given a thank-you present of a mug with the cartoon of Mohammed’s face on the side: a Mo mug. Hedegaard recently launched a newspaper called Dispatch International, which aims to break the silence of the Scandinavian media over issues to do with the EU, climate change, immigration and Islam. Two years ago Hedegaard was put on trial for ‘hate-speech’. He was unanimously acquitted.
But given the areas he has dealt in and what has happened to his colleagues, did he not guess that something like this might -happen?
‘I never speculated about that, because you can’t live your life that way. If every time you sit down to your computer to write something you have this idea in the back of your head, “I may be killed if I write this”, then of course you won’t be as good as you could be. You’ve got to distance yourself from fear if you want to be a true writer and a true intellectual, which is what I’m trying to be.’
And why do people keep trying to silence such defenders of free speech in Denmark, Holland and across Europe? He paraphrases the historian Bernard Lewis: ‘The leaders of the Ummah [Islamic nation] now evidently believe, or want to demonstrate, that Sharia law has already gained force in places like Denmark. In other words it has supplanted our constitution in their minds. Of course it didn’t use to be that way, it used to be the way that you could draw Mohammed or paint him or say whatever you wanted in the Dar al-Harb [‘The Land of War’ — as opposed to the ‘Land of Islam’] because this was outside what Islam considered to be its territory. Now they are implicitly claiming that we are already under Sharia law.’
But what of those who say, ‘Well, he ought to have known. This is what happens if you upset or provoke people’?
‘I don’t want to brag and put myself on a level where I don’t belong, but you could have said the same thing about the White Rose in Germany, the resistance group. They ought to have known that if they said something about Nazism, they would be killed. Or you could say the same thing about the Danish resistance movement during the German occupation. It was said to them: do not go out and sabotage. Collaborate and shut up, otherwise you’ll get to a concentration camp and you’ll be executed. You could have said the same thing to Winston Churchill or the British Army — why the hell make trouble? You know what’s going to happen if you resist — you’ll be killed. Yes, and many of them were.’
‘It’s not because I’m a hero or I want to be a martyr. Far from it. I take it seriously that people, Danish taxpayers many years ago, paid for me to get a university education at a very good university in Denmark, where I learnt about history, humanities, logic and philosophy, and English by the way. I feel an obligation to use my education for what it was meant to be. If not, then you don’t deserve to be educated. If your education is to be used to shut up, placate, downplay, sweet talk, then you are better off being a carpenter.’
And what of the media, which — particularly after the smears around the failed prosecution — have regularly portrayed him as a bigot? Do they have any culpability in this? Hedegaard is reluctant to apportion secondary blame, but finally says this:
‘You can certainly say that if you are constantly presented as an enemy of the people, as I have been, then you are fair game for any lunatic. You cannot blame some lunatics for thinking that you can easily come and kill me, because if you read all this day in and day out, year in and year out, the man is an absolute lunatic and full of lies and bile and what not, you can get him with impunity. Yes, of course I think it plays a role.’
And what happens now? ‘Well, the paper survives, we are more determined than ever that they should not take us down, come what may. What happens to me, I don’t know. I am fully prepared to stay alive to the best of my ability and I am more eager than ever to write my opinion and try to bring it across. Somebody must not like what I’m saying, so that’s all the more reason to continue saying it.’
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine). My Home Pages are here or here or here. Email me (John Ray) here.