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As A Movement Grows To Make Those With Criminal Records

A Protected Class, Let’s Consider The Abuses Employers Already Face

By:  Bill Pilchak – 6/10/14

           In business, we encounter a steady stream of jargon reflecting the latest trends: “synergy,” “24/7,” “value-added,” “aligned.” One vintage business term has been on my mind lately, as a movement gathers to protect those with criminal records: “Empowerment.”

          Empowerment is an ephemeral concept. Most of us learned its definition by its usage.  But what is it? It’s a word in search of an illustrative example.

          And I have one.

          For the best of motives, we passed civil rights statutes that protect employees on the basis of race, color, sex, religion, national origin, age, disability, marital status, whistleblower status and, in Michigan, on the basis of height and weight. Then, the FMLA gave job security to anyone who went to the doctor and got a prescription.

          Without question, the statutes have some benefit. HR departments now assure discharges are not motivated by discrimination. Those needing medical leave, get it.

           However, the statutes “empower” the 85% of workers with protected status[1] to financially strike back at their former employers when terminated. Their weapons are costly: a Charge of Discrimination or/and a claim filed in court. Even if the allegations have no merit whatsoever, an employer will spend several thousand dollars defending a Charge or between $50,000-$100,000 to have a court case dismissed. The ability to force one’s adversary to incur that kind of expense is true “power.”

          So, who have we empowered? Statistically, fired employees are more likely to have violated rules, shirked duties, skipped work, wasted time, or stolen time, property or the employer’s confidential data or have conflicts with authority figures, because those are common reasons for termination. Employers don’t run off employees who make valuable contributions and follow the rules. Some of these common reasons for discharge belie character issues. Would those characters be inclined to raise false claims?

          You bet. Nearly 100,000 Charges of Discrimination are filed per year at the EEOC, with another 50,000 Charges being filed with equivalent state agencies. As noted in a recent BLawg post, over the past ten years, the EEOC found “reasonable cause” to believe that discrimination occurred in only 4.8% of those Charges.[2] 10.2% of Charges are settled by employers, some guilty but some looking to minimize costs. Remarkably then, the EEOC has a “guilty until proven innocent” approach, where innocent employers are commanded to explain themselves, given deadlines and required to disgorge sensitive information that will later be provided to the employee upon request, while the EEOC holds the terminated employee’s information close to the vest.

          Imagine if other agencies operated like the EEOC. If the county prosecutor’s docket was made up of 90% innocent people, there would be outrage. If the health department falsely investigated 90% of local restaurants as unsanitary, the press would demand an explanation.

          One would think that an agency with a history of overwhelmingly meritless complaints would at least adopt a mechanism to dissuade them or expedite their dismissal to avoid the waste of resources and resulting loss of national competitiveness. After all, if 135,000 innocent employers only spend $2000 each to defend themselves, $270 Million is needlessly gushing out of businesses every year. That’s a lot of chaff for very little wheat. However, that volume of spurious Charges justifies a $360 Million (2012) budget for the EEOC. Why would they do anything to dissuade false Charges?

          Not only is there no mechanism to dissuade or dismiss meritless charges, but the EEOC has been known to press cases that investigators have acknowledged as frivolous.

          In one Charge defended by the author, a probationary employee in her first 90 days on the job was working in a customer’s plant and had been caught driving an electrical industrial vehicle without the required safety training. Just hours after being forbidden from driving the vehicles, she was seen driving again, but sped away before her supervisor could catch her. Moments later, she ran a stop sign, nearly hit a customer representative and proceeded to exchange heated words with the customer. After the customer banned her from the facility and took her security badge, she snuck back into the plant in violation of the customer’s security procedures.   When, after all that, she was fired, she was replaced by someone of the same race and sex. Amazingly, instead of these facts resulting in a quick dismissal, the investigator pressed for compensation for the Charging Party while admitting there was no case of discrimination, stating the Charging Party would likely not find work again.

          Other aspects of EEOC practice help give life to false claims. In the 4.8% of cases where the EEOC finds “cause” to believe discrimination has occurred, that finding is admissible into evidence against the employer, and the EEOC uses language that impresses the prospect of discrimination upon any jury later hearing the case. The employer gets no equivalent benefit, even if the evidence is overwhelming that no discrimination occurred. The EEOC’s language in that instance will generally be: “The EEOC is unable to conclude that the information obtained establishes violation of the statutes. This does not certify that the respondent is in compliance with the statutes.”

          Even worse, many of the false Charges go on to become expensive, frivolous lawsuits. Nothing prohibits an employee from filing a lawsuit, even if the EEOC found no evidence that discrimination occurred. Once upon a time, employers could count on market forces to protect them against frivolous lawsuits. Lawyers would not invest their time in a bad case, because it took away from more profitable endeavors. However, the system is overloaded with attorneys. 45% of new grads cannot find jobs in the profession and State Bar of Michigan statistics consistently show that 25% of its 34,000 practitioners (i.e.8500) make $45,000 or less annually. There are so many attorneys with time on their hands, that they take cases today that no lawyer would have accepted in the past, hoping that an employer will settle to avoid the $50,000-$100,000 in inevitable attorney fees.

          In case you haven’t noticed it, there is a movement underway to make those with criminal convictions a protected class. Many states already have statutes limiting an employer’s ability to consider convictions. Pennsylvania precludes employers from considering even felony convictions, unless the crime has some relevance to the felon’s ability to perform the job. Repeat sex offenders can and have used the statute to insist on their right to enter a workplace, raising interesting Constitutional issues in the nature of Freedom of Association. In 2012 the EEOC republished Guidance regarding the use of criminal convictions in hiring decisions, and there is now a nationwide “ban the box” effort underway to preclude employers from even asking about convictions until resources have been expended in the application process. Ten states have already passed laws.

          Empowering convicted criminals to sue employers would be a terrible move. The ban the box statute proposed in Michigan in 2013 was limited to prohibiting applications from including a question about convictions. The statute would waste precious resources by requiring employers to expend time, effort and possibly money on candidates that would have been excluded earlier in the process. However, thankfully, it doesn’t allow for much opportunity to fabricate claims: either the application asks the forbidden question or it doesn’t. Nevertheless, the subtle campaign to label convicted criminals as a protected class and the expansion of rights for convicted criminals, would empower people that cannot be trusted with the power.

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 [1] The figure is drawn from Bureau of Labor Statistics data on the make-up of the workforce: 45.4% of females, 20.2% minorities and approximately 53.5% of “over-40” employees in the workforce. (100% – 45.4 – 20.2= 34.4% white males x .465= 15.996% white males under 40.) It’s reasonable to assume 1% of those younger white males can claim protected status on the basis of religion, disability, marital status, or non-tracked national origin (Eastern-European, Canadian, etc.).

[2] Moreover, for some of those years, the EEOC was in the habit of scouring employment applications and employee handbooks and finding “cause” regarding matters that had nothing to do with the issue set forth in the Charge. Without speculating on motive, that practice artificially inflated the figures.