Fox News analyst Bernie Goldberg railed against long-standing employment discrimination law, mangling a civil rights doctrine to incorrectly claim the Equal Employment Opportunity Commission (EEOC) is seeking to prevent companies from screening job applicants for misdemeanor or felony convictions.

The EEOC recently filed complaints against a BMW facility in South Carolina and the retailer chain Dollar General because they allegedly conducted improper background checks that disproportionately affected workers and applicants of color, a possible violation of Title VII of the Civil Rights Act of 1964. This type of racial discrimination has been held to be impermissible by the Supreme Court since 1971 and was most recently acknowledged to be good law by conservative Justice Antonin Scalia in 2010.

Goldberg, however, attacked the complaints, claiming “to most regular folks out there listening to us, this has to sound crazy, because there is no racial discrimination in any traditional sense.” From the June 18 edition of America Live:

As mentioned by Goldberg, EEOC is using the disparate impact enforcement approach of Title VII, which can prohibit employment policies that have a disproportionate effect on the basis of race without an acceptable employer justification. Not only has the Supreme Court affirmed this antidiscrimination enforcement under Title VII since 1971, Congress explicitly codified the doctrine in 1991. Nevertheless, right-wing media continue to pretend this type of statistical analysis is improper and have repeatedly smeared the Department of Justice for utilizing this area of civil rights law. 

In this instance, Goldberg objected to the fact that BMW and Dollar General are being challenged for their screening policies that reject far more workers and applicants of color than whites. As reported by the Associated Press, the BMW facility's new blanket background checks led to the firing of 88 workers, 70 of whom were African-American. The complaint against Dollar General focused on two applicants of color, one who was rejected for a six-year old drug possession charge, and another who was rejected even though the conviction that came up on her background check was a false positive.

Goldberg attacked the EEOC complaints against both BMW and Dollar General by claiming the federal government is trying to force the “required” and “obliged” hiring of criminals over the companies' attempts to discriminate “against convicted felons.” This is flatly inaccurate. Consistent with decades of Title VII and other disparate impact litigation, now that the EEOC has pointed out that the companies' blanket background checks disproportionately disqualify applicants of color, BMW and Dollar General can "demonstrate that the challenged practice is job related for the position in question and consistent with business necessity."

For example, if BMW can explain to the federal court why its warehouse jobs require that workers of color are disproportionately terminated - such as a "woman with 14 years under her belt [who] was let go after a misdemeanor conviction surfaced that was more than 20 years old and carried a $137 fine" - it can continue with its current screening system. Contrary to Goldberg's assertion, EEOC is not attempting to nullify all criminal background checks, just those that have an unjustified disparate impact on applicants of color.

As a growing number of states and local jurisdictions have realized, this automatic refusal to consider applicants with criminal convictions - no matter how minor, irrelevant, or old - is having a devastating effect on communities of color who are disproportionately imprisoned and unemployed. As explained in a recent report by the National Employment Law Project:

At the same time that the background check industry has expanded, the share of the U.S. population with criminal records has soared to over one in four adults.

In the right situations, criminal background checks promote safety and security at the workplace. However, imposing a background check that denies any type of employment for people with criminal records is not only unreasonable, but it can also be illegal under civil rights laws. Employers that adopt these and other blanket exclusions fail to take into account critical information, including the nature of an offense, the age of the offense, or even its relationship to the job.

[...]

The concurrent losses to the individual are devastating. A person's interaction with the criminal justice system extends beyond what may be a minor arrest or conviction to a lifetime of social and economic disadvantage. One prominent researcher has found that a criminal record reduces the likelihood of a job callback or offer by nearly 50 percent, an effect even more pronounced for African American men than for white men. Not surprisingly, the U.S. Equal Employment Opportunity Commission (EEOC) has recognized that employer reliance on proxies for race--such as having a criminal record--is “an important civil rights issue.”

Fox News, however, by continuing the right-wing media campaign against anti-discrimination laws, prefers to trivialize this unemployment crisis and continue to pretend that disparate impact is somehow illegal.

Goldberg's ridiculous analogy that he could file an employment discrimination claim against the National Basketball Association for not hiring him is illustrative of his ahistorical understanding of the doctrine. Just like courts have determined that some public employee exams that have a disproportionate effect on applicants of color are not proper measures of job qualifications - a point Goldberg ignores in his defense of firefighter exams that have been found to be illegal - so too is he free to argue the same against the NBA. The entire point of disparate impact under Title VII is to point out the math, then let the employer explain why the disparity is necessary. BMW and Dollar General will now have the opportunity to do just that in defense of their sweeping screening processes.

Ultimately, right-wing media can continue to bash statistical analysis as part of their campaign against modern civil rights law, but it would be helpful to the audience if they also added the caveat that their advocacy is not against lawlessness, but rather for a repeal of long-standing precedent. In a 2010 Supreme Court opinion, Justice Scalia - no fan of the doctrine - made just this point in his discussion of disparate impact under Title VII. From Lewis v. Chicago:

In all events, it is not our task to assess the consequences of each approach and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted. By enacting [the disparate impact provisions under Title VII], Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer's motives and whether or not he has employed the same practice in the past. If that effect was unintended, it is a problem for Congress, not one that federal courts can fix.