WSJ Pushes Irrelevant Talking Points To Defend Discriminatory Background Checks

A member of The Wall Street Journal editorial board attacked decades-old employment discrimination precedent under Title VII by incorrectly describing the law and selectively quoting a letter written by nine Republican attorneys general to support her faulty argument.

WSJ editorial board member Mary Kissel has a history of smearing civil rights precedent that holds racial discrimination is illegal if it has an unjustified disproportionate effect on historically protected groups. Kissel has written editorials that falsely pretend this current body of law is improper and any government official that utilizes or seeks to defend the doctrine is "shady."

As the enforcement of civil rights law - including disparate impact law - is the job of the Department of Justice, Kissel's editorials have nicely dovetailed with the WSJ's constant support of GOP obstructionism and its attacks on the Voting Rights Act, former Civil Rights Division head Thomas Perez, Attorney General Eric Holder, and seemingly anyone else who worked at the Department of Justice.

In her most recent editorial criticizing new civil rights guidance from the Equal Employment Opportunity Commission (EEOC), Kissel fails to mention that the policy she is attacking is once again a disparate impact one, well-established in Title VII employment discrimination law. From the WSJ:

The Equal Employment Opportunity Commission has run amok under chairwoman Jacqueline Berrien's guidance, particularly in its extralegal push to expand civil-rights protections for the likes of murderers and rapists. So it's welcome news to see state attorneys general shedding some light on the situation.

Nine Republican AGs, from states stretching from Montana to South Carolina, penned a letter to Ms. Berrien and the commission last week complaining about the “substantive position” the agency has taken against retailer Dollar General and a U.S. subsidiary of car maker BMW. The EEOC contends the companies broke federal law by using criminal background checks in employment decisions.

The AGs rip apart that legal theory, noting that Title VII of the 1964 Civil Rights Act prohibits discrimination “on the basis of race, color, religion, sex, or national origin,” not criminality, and that “neither lawsuit alleges overt racial discrimination or discriminatory intent.” The EEOC's guidance issued in April last year, presumably to give a legal veneer to the subsequently filed lawsuits, “incorrectly applies the law” too.


[R]egulators are supposed to enforce the law, not write it. The AGs want the EEOC to rescind its criminal background check guidance and dismiss the Dollar General and BMW lawsuits, which is unlikely so long as Ms. Berrien is around. But at the very least, the letter should embarrass an agency that deserves serious congressional scrutiny.

Kissel's support for her analysis that "[t]he AGs rip apart that legal theory" is her approving quote of the Republican officials' unremarkable observation that “neither lawsuit alleges overt racial discrimination or discriminatory intent.” But the attorneys general confirm in the same letter that these types of discrimination are not the only grounds for bringing action under Title VII - disparate impact is the other. From the letter:

Indeed, even as these Republican attorneys general proceed to argue that routine application of the federal Civil Rights Act of 1964 is an “egregious” intrusion into state sovereignty and boldly claim - without proof - that the EEOC is seeking to add “former criminals” to the statutorily protected groups of race, color, religion, sex, and national origin, they are unable to contest the basic premise of the EEOC disparate impact lawsuits.

Most likely, this admission is due to the fact that the legitimacy of challenging the racially discriminatory effect of an employment practice like a criminal background check that is not sufficiently justified has been permitted under Supreme Court precedent since 1971 and was explicitly codified into the Civil Rights Act in 1991.

Notably, not only did Fox News get this precedent correct in its recent attacks on these exact same EEOC lawsuits, so too has Kissel's colleague and fellow WSJ editorial board member, James Taranto. Like Fox News and unlike Kissel, Taranto has railed against disparate impact lawsuits while properly acknowledging "[t]he disparate-impact test in [Griggs v. Duke Power Co (1971)], written into law in the Civil Rights Act of 1991."

Perhaps Kissel is unfamiliar with this civil rights law, however, as she is apparently unaware that what is at issue is not “expan[ding] civil-rights protections for the likes of murderers and rapists.” Rather, the problem is that the background checks that employers are relying on include low-level arrests (without final convictions) and are often incomplete and error-ridden, a fact that even the database managers freely admit. From The Washington Post:

Employers are increasingly turning to the FBI's criminal databases to screen job applicants, sparking concerns about the accuracy of the agency's information and the potential for racial discrimination.

Many of the FBI's records list only arrests and not the outcomes of those cases, such as convictions. Consumer groups say that missing information often results in job applicants who are wrongfully rejected. A lawsuit filed against the Commerce Department by minorities alleges that the use of incomplete databases means that African Americans and Hispanics are denied work in disproportionate numbers.

The FBI's background checks “might be considered the gold standard, but these records are a mess,” said Madeline Neighly, staff lawyer at the National Employment Law Project.

NELP is slated to release a report Tuesday showing that the FBI processed nearly 17 million employment background checks last year -- six times more than it did a decade ago. The advocacy group estimates that as many as 600,000 of those reports contain incomplete or inaccurate information.

In a statement, the FBI said it receives its data from state records agencies, and states are responsible for keeping the information updated.


At the state level, many of the records are incomplete. A report by the Justice Department in 2010, the most recent available, found that in about half the states, as many as two in five records were missing final outcomes. Twenty-seven states reported a backlog of disposition data. Transmitting the information from the courts to state records agencies could take less than a day in Delaware to 555 days in Kansas.

Updating the records of those who fall through the cracks can be confusing and cumbersome. FBI regulations say that employers and licensing agencies should give applicants time to challenge and correct their records, either by contacting the FBI or the jurisdiction that collected the data. But applicants are not always given a copy of their report or told why they were disqualified. Often, the burden is on them to prove an error was made.

This is the evidence of a business practice that might not justify its disproportionate effect that Kissel must address before she complains about the purportedly “extralegal” applications of decades-old Title VII law. Instead, Kissel smears yet another Obama administration official for purportedly “run[ning] amok” and baselessly claims her selective quotes “should embarrass an agency that deserves serious congressional scrutiny.”