One way the current political climate discourages job creation is by turning problem employees into lawsuits for the employers who took the risk of hiring them. A bad legal climate has gotten worse over the past several years due to the appointment of more left-wing, anti-employer judges by President Obama and an increasingly out-of-control Equal Employment Opportunity Commission.
The EEOC sues employers for terminating bad employees who fall into “protected classes,” and for sensible hiring decisions that most judges would consider perfectly legal, since the plain language of federal civil-rights laws permits them. The EEOC even sues employers for using hiring qualifications required by state health and safety laws.
The EEOC’s abusive, out-of-control behavior is lamented by many lawyers who agree on little else, liberal and conservative alike. The liberal lawyer “Loki,” writing at the Volokh law blog, observes:
Without going into too much detail, I recently had the bizarre experience of the EEOC first arguing that the plain language of the statute didn’t matter. Then we dug up their own policy, which contradicted their stated litigation position. They argued that their own policy didn’t matter. The issue hadn’t been litigated much, but we found case law directly on point contradicting them (and for which they had been sanctioned). They argued that the case law didn’t matter. Then we found prior DOJ opinions on the issue- guess what? The EEOC said the DOJ opinions didn’t matter.
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The judge? He thought it mattered.
I wish this was a one-off experience, but it’s not. Every single time I have dealt with the EEOC, it’s something similar. It’s gotten to the point where I fully expect them to be pissing on my leg so they can tell me it’s raining. And note that I’m not reflexively anti-government; I’ve dealt with the DOJ and SEC (among others) and have nary a bad word to say with the attorneys I’ve dealt with. . .I honestly don’t know what it is in the water at the EEOC. . . I had to do a lot of research on EEOC cases, and I found so many cases where the trial courts just got fed up with the EEOC it wasn’t funny.
Similarly, as the conservative/libertarian lawyer David M. Nieporent observes, the EEOC routinely disregards straightforward legal rules, such as the explicit statutory duty to engage in conciliation efforts before suing: “They have a statutory mandate to try to mediate employment disputes before filing suit, and they keep getting spanked by courts for failing to undertake this simple procedural step.”
The EEOC has pressured employers to hire people with criminal records as armed guards. It is going after G4S Secure Solutions for refusing to hire felons. That company 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. As Jim Bovard notes in The Wall Street Journal, the EEOC brought proceedings “in 2010 against G4S Secure Solutions after the company refused to hire a twice-convicted Pennsylvania thief as a security guard.” As he points out,
The EEOC’s new regime leaves businesses in a Catch-22. As Todd McCracken of the National Small Business Association recently warned: “State and federal courts will allow potentially devastating tort lawsuits against businesses that hire felons who commit crimes at the workplace or in customers’ homes. Yet the EEOC is threatening to launch lawsuits if they do not hire those same felons.” At the same time that the EEOC is practically rewriting the law to add “criminal offender” to the list of protected groups under civil-rights statutes, the agency refuses to disclose whether it uses criminal background checks for its own hiring. When EEOC Assistant Legal Counsel Carol Miaskoff was challenged on this point in a recent federal case in Maryland, the agency insisted that revealing its hiring policies would violate the “governmental deliberative process privilege.” The EEOC is confident that its guidance will boost minority hiring, but studies published in the University of Chicago Legal Forum and the Journal of Law and Economics have found that businesses are much less likely to hire minority applicants when background checks are banned. As the majority of black and Hispanic job applicants have clean legal records, the new EEOC mandate may harm the very groups it purports to help.
Ironically, the EEOC has a much worse record of civil-rights and labor-law violations than most companies and government agencies with a similar-size workforce.“The Equal Employment Opportunity Commission, responsible for ensuring that the nation’s workers are treated fairly, has itself willfully violated the Fair Labor Standards Act on a nationwide basis with its own employees, an arbitrator has ruled.” The EEOC was found guilty of systematic, illegal, reverse discrimination (discrimination against white males) in Jurgens v. Thomas, 29 Fair Empl. Prac. Cas. (BNA) 1561, 1982 WL 409 (N.D.Tex.1982), and continued to illegally engage in it later, long after it had been ordered to stop, as federal judges found. See, e.g., Terry v. Gallegos, 926 F.Supp. 679 (W.D. Tenn. 1996). The EEOC also has had a lot of sexual harassment lawsuits against it (and I am talking about real sexual harassment, not weak claims based on a couple of off-color jokes or overheard offensive speech, the sort of trivial thing the EEOC itself might unsuccessfully sue a private employer over). See, e.g., Spain v. Gallegos, 26 F.3d 439 (3rd Cir.1994). In short, as John Berlau once noted, the EEOC is like “the fox guarding the henhouse.”
The EEOC recently sued Pepsi for doing criminal background checks on job applicants, forcing the company to pay $3.1 million to settle the lawsuit. The EEOC is also threatening employers who require high-school diplomas with lawsuits under the ADA.
Employers’ ability to hire and fire based on merit has been under assault by the EEOC, which has ordered employers to discard useful employment tests and accommodate incompetent employees. For example, a hotel chain was recently compelled to pay $132,500 for dismissing an autistic desk clerk who did not do his job properly, in order for it avoid a lawsuit by the EEOC that would have cost it much more than that to defend. The EEOC has sued companies that quite reasonably refuse to employ truck drivers with a history of heavy drinking, even though companies that hire them will be sued under state personal-injury laws when they have an accident. The EEOC used the threat of endless litigation for force a cafe owner to pay thousands of dollars for not selecting a hearing- and speech-impaired employee for a cashier’s position that the employee was unsuited for (even though the the employer was happy to retain the employee in a different position that did not require standard speech and hearing abilities). The EEOC’s aggressive anti-business interpretation of the Americans with Disabilities Act (ADA) reflects its left-wing majority under the Obama administration, which has appointed anti-business extremists to the EEOC.