In an attempt to smear unrelated civil rights law by linking it to the tragic Navy Yard shootings, right-wing activist Hans von Spakovsky argued that background checks for arrests without convictions could stop gun violence.
Never one to miss an opportunity to shoehorn an attack on civil rights law into a different subject, widely discredited National Review contributor von Spakovsky used the disturbing mass murder committed by a veteran of color to criticize employment law that guards against unnecessary racial discrimination in hiring practices. From his recent op-ed in The Washington Times that claimed "Obama policy would have exempted the Navy Yard shooter from scrutiny":
But what if The Experts had actually turned up these criminal arrests for gun-related violence [in a background check] and refused to hire Alexis? If the company had done so, it might have violated the hiring policy the Obama administration is trying to force on private employers. It could have been accused of discrimination by the Equal Employment Opportunity Commission (EEOC), a federal agency controlled by Obama appointees.
In April 2012, the EEOC issued enforcement guidance severely restricting the use of criminal background checks by employers when hiring new employees. The EEOC claims that because blacks and Hispanics are arrested and convicted at higher rates than whites, the use of a criminal-background check will have a "disparate impact" on minorities and, therefore, violates Title VII of the Civil Rights Act of 1964.
Unfortunately, the terrible tragedy in the Navy Yard graphically illustrates why the Obama administration's push to force employers to stop using criminal background checks is not only legally wrong, but dangerous.
Rather, the EEOC is utilizing long-standing anti-discrimination law under Title VII of the Civil Rights Act that prohibits those employment or hiring policies that have an unjustified discriminatory effect on persons of color. Therefore, criminal background checks per se are perfectly acceptable if they are pertinent to the job at hand.
Recently, however, blanket employment screening has become so commonplace that it flags offenses that are not only minor, but also unnecessary for the occupation in question. Because the databases that background checks rely on have an alarmingly high number of false positives based on "incomplete or inaccurate information," and because communities of color disproportionately suffer from encounters with the criminal justice system, multiple reports indicate that this new trend is making the unemployment rate for persons of color worse.
This is of interest to those with the responsibility to enforce Title VII.
If the EEOC subsequently proves this discriminatory effect and a business cannot "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity," a Title VII disparate impact violation may have occurred. This application of anti-discrimination legislation is decades-old and was recently acknowledged by conservative Justice Antonin Scalia to be pursuant to congressional intent. Nevertheless, von Spakovsky highlighted a recent Title VII case that the EEOC lost as an example for why this civil rights law is "dubious."
Instead, the judge found that the non-legal work of an "outside statistician" provided on behalf of the EEOC was flawed. In short, the EEOC failed to carry its statistical burden in routine Title VII litigation. Potentially embarrassing for the expert in that one case? Sure. Devastating to Title VII jurisprudence? Hardly.
Finally, beyond inflating one low-level decision as an example of EEOC's overall "dangerous" opposition to blanket and unnecessary background checks, von Spakovsky also argued that these types of employment screens could have stopped the Navy Yard shooting. Indeed, von Spakavosky argued for a background check to prevent gun violence that is even more robust than what is typically used.
Although the criminal background checks that the EEOC is currently pushing back on are those that flag convictions, the Navy Yard veteran that Von Spakovsky claims "graphically illustrates why the Obama administration's push to force employers to stop using criminal background checks is not only legally wrong, but dangerous" was only ever arrested. A background check that screens for dropped arrests, as von Spakovsky seems to support, is far more sensitive than what is currently under litigation.
Overriding even well-established equal protection precedent, this is an aggressive public safety position, regardless of its accompanying misrepresentation of employment law. It will be interesting to see if von Spakovsky's gun violence prevention logic similarly extends to gun purchases in the future.