I’ve got a new post up at Cato (“Sixth Circuit: You’re Drunk, EEOC, Go Home“) on the Equal Employment Opportunity Commission’s spectacular loss yesterday at the Sixth Circuit in the Kaplan case. As I comment, the victory for the defendant is
all the more impressive because one of the three judges on the opinion is liberal lion Damon Keith, about as sympathetic a judicial ear as the EEOC could normally hope for. It’s a sharp setback for the agency’s dubious “disparate impact” campaign against employer use of credit and criminal records in hiring. And it’s also part of a pattern of rebuffs and defeats the EEOC has been dealt by judges across the country since President Obama turned the agency on a sharp leftward course with his appointments.
The Sixth Circuit has actually been one of the EEOC’s better circuits in recent years. For example, it reversed a Michigan federal judge who in 2011 had awarded $2.6 million in attorneys’ fees to Cintas, the employee-uniform company, and reinstated the lawsuit. In doing so, the appellate panel nullified what had been the lower court’s findings of “egregious and unreasonable conduct” by the agency, including a “reckless sue first, ask questions later strategy.” The commission hailed the reversal as one of its big legal wins — although when one of your big boasts is getting $2.6 million in sanctions against you thrown out, it might be that you don’t have much to brag about.
For some other recent EEOC courtroom setbacks, check our roundup of last month. If you wonder why the commission persists in its extreme aggressiveness anyway, one answer may be that the strategy works: most defendants settle, and the commission hauled in a record $372 million in settlements last year. Yet here and there, as with Kaplan, defendants decide to put up a fight, with instructive results. When will Congress begin to hold the commission accountable? More: Hans Bader, CEI.
It must not have been easy to find an appointee even farther left than the departing Thomas Perez to head the Justice Department’s Civil Rights Division, but the search eventuated with apparent success in the Obama Administration’s naming of former NAACP Legal Defense Fund official Debo Adegbile. While his confirmation is a foregone conclusion under the Senate’s new simple-majority Harry Reid rules, Republicans may still make an issue of Adegbile’s backing of the EEOC in its controversial campaign to require employers to hire felons and limit the use of criminal background checks before employment. [Byron York, Washington Examiner] Update: nomination fails narrowly in Senate, opposition driven substantially by nominee’s involvement in public efforts on behalf of convicted Philadelphia cop-killer [Politico]
Finally addressing the entrenched social problem of architect-perpetrated crime? Or just the security state running mindlessly forward on its own momentum? David Lancaster of the Texas Society of Architects told a trade newspaper that his group “believed fighting the legislation would be ‘futile.’” [Mike Riggs, Atlantic Cities]
The federal EEOC has been helping prepare the ground with guidance indicating that it legally disfavors asking job applicants about criminal records across a wide range of situations. Meanwhile, activists in places like San Francisco seek local laws banning the practice in private employment, following successful campaigns to end it in the public sector. [San Francisco Chronicle]
According to the Chicago Sun-Times, an Illinois prison official “with a lengthy criminal history” has returned to the state payroll despite a record of “lewd and inappropriate emails” on the taxpayers’ dime and falsifying an earlier job application [Chicago Sun-Times]:
…Still, Gov. Pat Quinn’s administration struck a settlement with McCraven and his union, the American Federation of State, County and Municipal Employees….
In June, [after withdrawing a lawsuit] he then dropped a union grievance and accepted a 10-day suspension, got six months of back pay and was transferred to the job he now holds as senior adviser to the chief of parole with the Illinois Department of Corrections.
Asked to explain why McCraven was allowed to stay on the state payroll, the Quinn administration cited the potential financial costs of losing a grievance case. …
The Chicago Sun-Times reported Monday that McCraven is working for the state prison system despite being arrested “at least” 24 times on charges including arson, illegal gun possession, attempted robbery, drug possession and aggravated assault.
As mentioned yesterday, the federal Equal Employment Opportunity Commission has either had a stretch of really, really bad luck in court lately, or else it’s been caught out by a series of judges for outrageously aggressive litigation sometimes crossing over into misconduct. Among the recent cases, the Sixth Circuit upheld a fee award of $750,000 to a company that the commission had sued over a purported policy of not hiring convicted felons. Here’s Molly DiBianca of the Delaware Employment Law Blog:
The EEOC “investigated” the Charge, issuing multiple subpoenas and obtaining more than 15,000 pages of documents. Although the evidence did not seem to support the allegations in the Charge, EEOC disagreed and filed suit. The suit, asserted on a class of individuals, alleged that the company’s policy prohibited the hiring “of any person with a criminal record,” which disparately impacted Black applicants.
The trouble, though, was that PeopleMark did not have such a policy. Then the EEOC identified approximately 250 individuals it contended to be within the class of aggrieved persons. Well, as it turned out, PeopleMark had hired 57 of the individuals and some others did not have a criminal background in the first place.
More from Eric Paltell/Kollman & Saucier; DeGroff & Maatman; Greg Mersol, Baker Hostetler; EEOC v. PeopleMark.
“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)