Re: The Power of the SCOTUS IV: Gays, Guns, and Immigrants, OH MY!
Thanks, this is a perfect example of what I was trying to get at. One of my daydreams when I win a nine-figure Powerball jackpot is to hire gang leaders to run entrepreneurial businesses, since they have already demonstrated their leadership qualities and business acumen. to demonstrate that, when given the right opportunity, they can be even more successful in a "legitimate" business enterprise.
It's also an example of how the parties who perform the actual discrimination are not the parties who are being sued. Our recidivism rates are horrendous. Our prisons serve primarily to teach people how to be better criminals. The discrimination occurs in the way prisoners are treated while in prison, being warehoused, with little formal training to live a better life outside, with no formal psychological or moral or ethical counseling on how to live a non-criminal, socially useful life, with little formal training in skills that an employer might find useful once the prisoners are released.
Given recidivist statistics, is it really "discriminatory" for a business looking for a comptroller not to hire someone who had been convicted of fraud or embezzlement, absent any evidence that they have changed their ways? A fundamental rule of human behavior is "the best indicator of future behavior is past behavior" (unless there is some intervention to change the habits and attitudes that underly the past behavior).
While you express a lot of dislike for disparate impact discrimination claims, I really don't think you understand them.
You keep saying that the people getting sued are not the same people who are doing the discrimination. That's simply not true. If I am an employer, and I adopt an employment policy/hiring policy, that has no relationship at all to the job being offered, and if that policy has the effect of eliminating substantial portions of one race, or sex or religious preference of the candidate field, that's discrimination, and by explicitly adopting or implementing that policy, I the employer have committed the discrimination. No one is forcing me to adopt such a policy.
Your comptroller example further demonstrates your lack of understanding. There is literally no chance at all that the employer in your example would ever be sued. What the EEOC says is that a
blanket policy or practice of rejecting anyone who has ever been convicted of a crime, without considering the age of the crime, the age of the perpetrator when it occurred, the nature of the crime, and any relationship between the nature of the crime and the type of job being offered, has committed discrimination.
Thus, your employer would be able to clearly claim he or she compared the nature of the crime with the job and see a direct reason why you shouldn't hire a thief for the position.
Here's what the EEOC is trying to eliminate. Let's say a 19 year old is convicted of, and does prison time for criminal vehicular homicide. While joyriding with his friends he attempts to take a curve at 110 mph, crashes, and kills one of his passengers.
20 years later, after he's been out of prison for 15+ years, he applies for a job as a cashier at WalMart. No driving involved. Yet WalMart has a blanket policy.
To me, what's interesting about these claims is the fact that criminals are not a protected class. However, the statistics show that African Americans are convicted at a substantially higher rate than whites. Thus, the EEOC takes the position that blanket rejections on the basis of prior criminal convictions is discrimination, through disparate impact on the African American race.
But what if in my example the 19 year old was white?
This is what I don't think the EEOC has sorted out yet, and what I think is going to lead to all sorts of interesting litigation. I suspect in my example the 19 year old would be out of luck, but the EEOC's claim against WalMart would survive.
