This from Salena Zito last week:

The Civil Rights Act prohibits workplace discrimination on the basis of race, sex, religion and national origin. EEOC attorney Debra M. Lawrence wrote that criminal background checks “cause a disparate impact because of race or other protected classifications.”

Lawrence went on to say the employment hiring practices must be shown by the employer to be necessary to ensure the safe and efficient performance of the particular jobs at issue.

“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,” Lawrence added.

If your jaw has not hit the floor, it should.

Zito comments, “Logic says EEOC’s underlying assumptions are that nonwhites are criminals. That’s absurd and insulting.” That’s quite possibly true, but it could also presume that a greater rate of criminal conviction within a certain classification is based on discrimination, not the behavior of the people in that class. Either assumption/presumption is, on its face, bigoted – it is simply a question of where the bigotry is aimed. As Chief Justice Roberts has said, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Now, disclaimer time. I know many convicted criminals that have turned their life around. I have hired them – but – and this is a huge “but” – they had earned my trust to some level, on some basis, and they were watched more closely until that trust had been fully merited. That said, my business was small and individualized, an operation like the one contemplated in Zito’s story is huge and has to standardize hiring practices. Or does it?

There was a time when large companies put far more trust in the judgement of their local management. But there was also a time when a hire/fire decision was not automatically lawsuit fodder. One has to ask who really benefits from all this law, regulation and litigation about race and other classifications. Has it ended discrimination? As we have seen, it has not. Rather it has created a labyrinth of rules, standards and procedures that demands lawyers be involved at every step of the process. That, in turn, demands centralization of hiring standards in large companies. The local manager cannot take a risk on a con because that risk might violate some obscure reg that the local manager has no clue about. And so, it gets circular. Whatever happens, something hits the fan and the lawyers pounce.

In the end, the beneficiary of all this is not the victims of discrimination, but the lawyers. One is tempted to quote Shakespeare, Henry VI, Part 2, Act IV, Scene 2, “The first thing we do, let’s kill all the lawyers.” But I know far too many good lawyers doing good things. Rather, we need to note that whether it be hiring practice, environmental regulation, or other areas where our government has come to dictate practice in the smallest degree, there are agendas other than “public benefit” that is pretended to at play.

And all of this is like a giant weight on the grave of merit. The more structure we build, the harder it becomes for straightforward merit to dig itself out again. If we are not careful, it might just crush the corpse. Then what?

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