“NCAA sued over rule barring felons”

by Walter Olson on February 15, 2013

“A nonprofit group sued the NCAA on Wednesday over a new policy that bars felons from coaching NCAA-sanctioned events. The lawsuit, filed in U.S. District Court in San Diego, claims that the new rule violates the Civil Rights Act and disproportionately affects minority coaches.” [ESPN, auto-plays video] The suit dovetails with the EEOC’s new crackdown on employer consideration of criminal records, which as James Bovard writes in the Wall Street Journal, seems calculated to raise the legal risks substantially for employers who put job applicants through criminal background checks: it denies the “business necessity” defense to employers even when a state’s law mandates the use of criminal checks, and requires most employers seeking to consider criminal records to enter a legal minefield of obligatory “individualized assessment” in which decisions can be second-guessed readily and expensively:

It is difficult to overstate the EEOC’s zealotry on this issue. The agency is demanding that one of [former EEOC general counsel Donald] Livingston’s clients — the Freeman Companies, a convention and corporate events planner — pay compensation to rejected job applicants who lied about their criminal records.

(& T. Andrew Perkins)

{ 7 comments }

1 Canvasback 02.15.13 at 2:36 pm

What a dilemma. The Justice Dept. and Corrections Corp. need convictions to keep their numbers up. EEOC and the IRS need people with jobs paying taxes. And this isn’t a case of reasonable minds differing. Essentially, they’re government employees working in opposite directions. This is something Obama could actually address.
Personally, if the applicant in front of me seemed okay except for a marijuana conviction in Texas 20 years ago, I’d be inclined to offer the benefit of the doubt.

2 ras 02.15.13 at 3:46 pm

As existing markets dry up, industry players must find new ones or die: exhibit A, the EEOC.

3 gitarcarver 02.16.13 at 10:56 am

Personally, if the applicant in front of me seemed okay except for a marijuana conviction in Texas 20 years ago, I’d be inclined to offer the benefit of the doubt.

The key there is “personally.” This is an area where the government should have no input whatsoever. A conviction speaks to moral character and the weight of that conviction when hiring is my decision, and not the government’s. If they want to hire ex criminals, let ‘em. With few exceptions, don’t extend the government’s hiring practices into my private company.

4 Craig Loehle 02.16.13 at 1:29 pm

So, leaving aside drug convictions, it is ok to have people with felonies for robbery handling your company’s money? A violent felon working in your high stress workplace? A sexual offender working with youth or traveling alone with women? And what happens when you get sued after a bad outcome?
This is all based on the differential outcome theory–that if it affects a minority more, it should be illegal.

5 wfjag 02.16.13 at 4:40 pm

I wonder if anyone at the EEOC has a security clearance? (since a criminal background check – and answering questions about any arrests and/or convictions – is part of it).

6 Matthew Brown 02.16.13 at 8:46 pm

I also worry, like the article, that such a rule will result in more discrimination, and less fair discrimination, at least if you think, like I do, that discrimination on *actual conduct* is fairer than discrimination on the basis of “looks like bad news”, a judgment much more likely to result in discrimination based on race, color or culture, and which may hit a law-abiding citizen equally hard.

If too many minorities get sent to prison, take a look at the imprisonment industry — fix it where it should be fixed. If long-ago minor crimes can be shown to have little bearing on an employee’s current trustworthiness, expand the policy that allows certain convictions to be legally void after the passage of time.

7 MattS 02.17.13 at 10:04 pm

Reading the source article, the situation is even worse than this article makes is seem.

1. The EEOC has already had at least one case on this issue tossed by a US District Judge who called the EEOC’s argument insulting to minorities.

2. Besides the company mentioned in the quote, they are going after another company G4S “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.” They are going after a company that is legally prohibited from hiring felons and are trying to force G4S to individually justify criminal background checks in decades worth of past hiring decisions.

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