Are Criminal and other Background Checks Racially Discriminatory?

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Are criminal background checks racially discriminatory? Of course they are. They have disparate impact on the races, since some of them are over-represented in the prison statistics and others of them are under-represented, compared to their share of the overall population. Employers who use them, if logic is to prevail, are guilty of violating laws prohibiting racial discrimination.

What about credit ratings? Are they racially discriminatory? Of course they are. They have disparate impact on the races, since some of them are over-represented in terms of debt history and others of them are under-represented, compared to their share of the overall population. Employers who use them, if logic is to prevail, are guilty of violating laws prohibiting racial discrimination.

Virtually all employers use such information in their hiring decisions. They want an honest work-force comprised of people who pay their debts. According to the Society for Human Resource Management, some 87% of all firms utilize such tests. They are all racial discriminators.

Next consider examinations based on strength, speed, endurance, as are utilized by professional sports leagues, police and fire departments, the military, etc. Are they racially discriminatory? Of course they are. They have disparate impact on the races, since some of them are over-represented in terms of these physical attributes and others of them are under-represented, compared to their share of the overall population. Employers who use them, if logic is to prevail, are guilty of violating laws prohibiting racial discrimination.

With this background in mind, consider a recent law case. The United States Equal Employment Opportunity Commission (EEOC) filed a lawsuit in 2009 against the Freeman Corporation claiming that this employer discriminated against job candidates who were black since the firm employed both criminal and credit ratings checks (this, despite the fact that the EEOC itself uses such criteria in its own hiring decisions; this law, presumably, only applies to the “little people” in the eyes of that Federal alphabet soup bureaucracy). U.S. District Court Judge Roger W. Titus of Maryland has just given (in mid August, 2013) his opinion of this lawsuit (so much for swift justice). According to this eminent jurist, “The story of the present action has been that of a theory in search of facts to support it… But there are simply no facts here to support” plaintiff’s case, he said. The judge further stated about the hiring policy of the defendant that it: “appears reasonable and suitably tailored to its purpose of ensuring an honest workforce.”

Yes, of course a criminal background check for potential employees is “reasonable and suitably tailored to its purpose of ensuring an honest workforce.” What person with an IQ above room temperature could doubt this? But the real issue is, did and does this policy constitute a violation of the laws prohibiting racial discrimination? About this there can be no question. The EEOC position is correct beyond question: such background checks are indeed discriminatory since black people form a higher percentage of the prison population than do either whites or Orientals.

So what is to be done if our nation is to be ruled by “laws, not men” and we do not want criminals, or deadbeats, to be forced down the throats of business firms (who will then be sued when their criminally-minded employees violate the rights of innocent people). Several things can be done.

First, and most important, repeal each and every law prohibiting racial or any other type of discrimination. We all discriminate! That is, there is not a one of us who cannot distinguish between the races, and who does not expect, on average, different types of behavior based on skin color alone. This is simply an economically efficient way to economize on scarce and costly information gathering. It is utter hypocrisy, of the sort practiced by the EEOC in its own hiring practices, to ignore this blatantly obvious fact. Should the entire U.S. population be condemned to prison for racism? That is the undeniable logical implication of these depraved laws.

Of course, we are now defining racism in terms of merely distinguishing people of different races. None of us is innocent of that. On the other hand, racism can be defined in terms of violating the rights of people of a given race. That is a despicable act, without question.

While we are at it, we can and should repeal laws that unfairly and disproportionately impose criminal penalties upon different races of people. Foremost amongst these would surely be drug legislation. Blacks are incarcerated at greater rates than their share of the overall population for victimless crimes involving drugs such as marijuana, cocaine and heroin. There are many other good and sufficient reasons for repealing such vicious legislation, but this is surely one of them. Without our various narcotics acts, the disproportionate number of black criminals would certainly decrease, and radically so. And, as it happens, these laws were initially enacted on a racist basis: not against the black community, but targeted at the Chinese in the early part of the last century, to stop them from patronizing opium dens.  Thus, there is yet one more reason for their repeal.

Judge Titus surely exhibited “common sense” in his ruling. If firms cannot legally prefer honest to dishonest workers, our entire civilization is at risk. But, just as assuredly, Titus is a law breaker. Were he a libertarian jurist, he would have found the Freeman company in violation of the laws prohibiting discrimination, but still rendered a not guilty charge based on the understanding that the law condemning such discrimination was itself invalid. He would have acted, in other words, as a nullifier. See on this Woods, Thomas E. 2010. Nullification: How to Resist Federal Tyranny in the 21st Century.  New York, NY: Regnery

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